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NEENAH FOUNDRY COMPANY,
AS ISSUER,
[ ]
[ ]
AS SUBSIDIARY GUARANTORS
AND
--------------------------
[ ]
AS TRUSTEE
--------------------------
INDENTURE
DATED AS OF [ ], 2003
--------------------------
UP TO [$ ]
11% SENIOR SECURED NOTES DUE 2010
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TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE........ 1
Section 1.1. Definitions.............................. 1
Section 1.2. Incorporation by Reference of TIA........ 22
Section 1.3. Rules of Construction.................... 22
ARTICLE II THE NOTES......................................... 23
Section 2.1. Form and Dating.......................... 23
Section 2.2. Execution and Authentication............. 24
Section 2.3. Registrar and Paying Agent............... 25
Section 2.4. Paying Agent to Hold Assets in Trust..... 26
Section 2.5. Noteholder Lists......................... 26
Section 2.6. Transfer and Exchange.................... 26
Section 2.7. Replacement Notes........................ 40
Section 2.8. Outstanding Notes........................ 41
Section 2.9. Treasury Notes........................... 42
Section 2.10. Temporary Notes.......................... 42
Section 2.11. Cancellation............................. 42
Section 2.12. Defaulted Interest....................... 42
Section 2.13. Persons Deemed Owners.................... 44
Section 2.14. Issuance of Additional Notes............. 44
ARTICLE III REDEMPTION........................................ 44
Section 3.1. Right of Redemption...................... 44
Section 3.2. Notices to Trustee....................... 45
Section 3.3. Selection of Notes to Be Redeemed........ 45
Section 3.4. Notice of Redemption..................... 45
Section 3.5. Effect of Notice of Redemption........... 46
Section 3.6. Deposit of Redemption Price.............. 47
Section 3.7. Notes Redeemed in Part................... 47
Section 3.8. Optional Redemption...................... 47
Section 3.9. Mandatory Redemption..................... 48
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE IV COVENANTS.......................................... 48
Section 4.1. Payment of Notes.............................. 48
Section 4.2. Maintenance of Office or Agency............... 48
Section 4.3. Corporate Existence........................... 49
Section 4.4. Payment of Taxes and Other Claims............. 49
Section 4.5. Maintenance of Properties and Insurance....... 49
Section 4.6. Compliance Certificate; Notice of Default..... 50
Section 4.7. Reports....................................... 50
Section 4.8. Limitation on Status as Investment Company.... 51
Section 4.9. Waiver of Stay, Extension or Usury Laws....... 51
Section 4.10. Rule 144A Information Requirement............. 51
Section 4.11. Limitation on the Incurrence of Indebtedness
and Issuance of Disqualified Stock............ 51
Section 4.12. Limitation on Restricted Payments............. 53
Section 4.13. Limitation on Liens........................... 56
Section 4.14. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries........... 56
Section 4.15. Limitation on Transactions with Affiliates.... 57
Section 4.16. Limitation on Lines of Business............... 57
Section 4.17. Sale and Leaseback Transactions............... 58
Section 4.18. Future Guarantors............................. 58
Section 4.19. Payments for Consent.......................... 58
Section 4.20. Asset Sales................................... 58
Section 4.21. Change of Control............................. 61
ARTICLE V SUCCESSORS......................................... 64
Section 5.1. Limitation on Merger, Consolidation or
Sale of Assets ............................... 64
Section 5.2. Successor Corporation Substituted............. 65
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES..................... 65
Section 6.1. Events of Default............................. 65
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 6.2. Acceleration of Maturity Date; Rescission and
Annulment...........................................67
Section 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee..............................69
Section 6.4. Trustee May File Proofs of Claim....................69
Section 6.5. Trustee May Enforce Claims Without Possession
of Notes.............................................0
Section 6.6. Priorities..........................................70
Section 6.7. Limitation on Suits.................................71
Section 6.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................72
Section 6.9. Rights and Remedies Cumulative......................72
Section 6.10. Delay or Omission Not Waiver........................72
Section 6.11. Control by Holders..................................72
Section 6.12. Waiver of Past Default..............................73
Section 6.13. Undertaking for Costs...............................73
Section 6.14. Restoration of Rights and Remedies..................74
ARTICLE VII TRU.....................................................74
Section 7.1. Duties of Trustee...................................74
Section 7.2. Rights of Trustee...................................75
Section 7.3. Individual Rights of Trustee........................76
Section 7.4. Trustee's Disclaimer................................76
Section 7.5. Notice of Default...................................77
Section 7.6. Reports by Trustee to Holders.......................77
Section 7.7. Compensation and Indemnity..........................77
Section 7.8. Replacement of Trustee..............................78
Section 7.9. Successor Trustee by Merger, Etc....................80
Section 7.10. Eligibility; Disqualification.......................80
Section 7.11. Preferential Collection of Claims Against Company....80
Section 7.12. "Trustee" to Include Paying Agent....................80
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE............. 81
Section 8.1. Option to Effect Legal Defeasance or
Covenant Defeasance............................... 81
Section 8.2. Legal Defeasance and Discharge.................... 81
Section 8.3. Covenant Defeasance............................... 81
Section 8.4. Conditions to Legal or Covenant Defeasance........ 82
Section 8.5. Deposited Money and Government Securities to be Held
in Trust; Other Miscellaneous Provisions.......... 83
Section 8.6. Repayment to Company.............................. 84
Section 8.7. Reinstatement..................................... 84
Section 8.8. Discharge of Liability on Securities; Defeasance.. 85
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS................... 85
Section 9.1. Without Consent of Holders........................ 85
Section 9.2. With Consent of Holders........................... 86
Section 9.3. Compliance with TIA............................... 87
Section 9.4. Revocation and Effect of Consents................. 88
Section 9.5. Notation on or Exchange of Notes.................. 88
Section 9.6. Trustee to Sign Amendments, Etc................... 88
ARTICLE X GUARANTEE OF NOTES.................................... 89
Section 10.1. Subsidiary Guarantee.............................. 89
Section 10.2. Execution and Delivery of Subsidiary Guarantee.... 90
Section 10.3. Subsidiary Guarantors May Consolidate, etc.,
on Certain Terms.................................. 91
Section 10.4. Releases Following Sale of Assets................. 92
Section 10.5. Releases Following Designation as an
Unrestricted Subsidiary........................... 92
Section 10.6. Limitation on Subsidiary Guarantor Liability...... 92
ARTICLE XI COLLATERAL AND COLLATERAL DOCUMENTS................... 93
Section 11.1. Collateral and Collateral Documents............. 93
Section 11.2. Application of Proceeds of Collateral........... 93
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 11.3. Possession, Use and Release of Collateral......... 93
Section 11.4. Opinion of Counsel................................ 95
Section 11.5. Further Assurances................................ 95
Section 11.6. Trust Indenture Act Requirements.................. 96
Section 11.7. Suits to Protect the Collateral................... 96
Section 11.8. Purchaser Protected............................... 96
Section 11.9. Powers Exercisable by Receiver or Trustee......... 97
Section 11.10. Release Upon Termination of Company's Obligations. 97
ARTICLE XII [RESERVED]............................................ 97
ARTICLE XIII [RESERVED]............................................ 97
ARTICLE XIV MISCELLANEOUS......................................... 97
Section 14.1. TIA Controls...................................... 97
Section 14.2. Notices........................................... 98
Section 14.3. Communications by Holders with Other Holders...... 99
Section 14.4. Certificate and Opinion as to Conditions Precedent 99
Section 14.5. Statements Required in Certificate or Opinion..... 99
Section 14.6. Rules by Trustee, Paying Agent, Registrar.........100
Section 14.7. Business Day......................................100
Section 14.8. Governing Law.....................................100
Section 14.9. No Adverse Interpretation of Other Agreements.....100
Section 14.10. No Recourse Against Others........................101
Section 14.11. Successors........................................101
Section 14.12. Duplicate Originals...............................101
Section 14.13. Severability......................................101
Section 14.14. Table of Contents, Headings, Etc..................101
Section 14.15. Qualification of Indenture........................101
Section 14.16. Registration Rights...............................102
EXHIBIT A - FORM OF NOTE ...................................A-1
EXHIBIT B - FORM OF CERTIFICATE OF TRANSFER.............. B-1
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TABLE OF CONTENTS
(CONTINUED)
PAGE
EXHIBIT C - FORM OF CERTIFICATE OF EXCHANGE......................... C-1
EXHIBIT D - FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR....... D-1
EXHIBIT E - GUARANTEE............................................... E-1
vi
CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310 (a)(1)................................................ Section 7.10
(a)(2)................................................ Section 7.10
(a)(3)................................................ N.A.
(a)(4)................................................ N.A.
(a)(5)................................................ Section 7.8,
Section 7.10
(b)................................................... Section 7.10
(b)(1)................................................ Section 7.10
(c)................................................... N.A.
311 (a)................................................... Section 7.11
(b)................................................... Section 7.11
(c)................................................... N.A.
312 (a)................................................... Section 2.5
(b)................................................... Section 14.3
(c)................................................... Section 14.3
313 (a)................................................... Section 7.6
(b)................................................... Section 7.6
(b)(1)................................................ N.A.
(b)(2)................................................ N.A.
(c)................................................... Section 7.6
(d)................................................... N.A.
314 (a)................................................... N.A.
(a)(4)................................................ Section 4.6
(b)................................................... N.A.
(c)(1)................................................ N.A.
(c)(2)................................................ N.A.
(c)(3)................................................ N.A.
(d)................................................... N.A.
(e)................................................... N.A.
(f)................................................... N.A.
315 (a)................................................... N.A.
(b)................................................... N.A.
(c)................................................... N.A.
(d)................................................... N.A.
(e)................................................... N.A.
316 (a)................................................... N.A.
(a)(1)(A)............................................. N.A.
(a)(1)(B)............................................. N.A.
(a)(2)................................................ N.A.
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
(b)........................................................ N.A.
317 (a)(1)..................................................... N.A.
(a)(2)..................................................... N.A.
(b)........................................................ N.A.
318 (a)........................................................ N.A.
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
INDENTURE, dated as of [ ], 2003, between Neenah Foundry
Company, a Wisconsin corporation (the "Company"), each Subsidiary Guarantor
listed on the signature pages hereto or which becomes a party hereto pursuant to
a supplemental indenture and [ ], a national association formed under the laws
of the United States, as Trustee.
The Company, the Subsidiary Guarantors and the Trustee agree
as follows for the equal and rateable benefit of the Holders of the 11% Senior
Secured Notes due 2010 (the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"144A Global Note" means a Global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold for initial resale in reliance on Rule 144A.
"Acceleration Notice" shall have the meaning specified in
Section 6.2.
"ACP Holdings" means ACP Holding Company, a Delaware
corporation.
"Acquired Debt" means, with respect to any specified Person:
(i) Indebtedness of any other Person existing at the time such other Person
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Additional Notes" means any Notes (other than Initial Notes
and Exchange Notes and Notes issued under Sections 2.6, 2.7, 2.10 and 3.1
hereof) issued under this Indenture in accordance with Sections 2.2, 2.14 and
4.11 hereof, as part of the same series as the Initial Notes or as an additional
series.
"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" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that beneficial ownership of 10% or more of the
voting securities (or the equivalents) of a Person shall be deemed to be
control.
"Affiliate Transaction" shall have the meaning specified in
Section 4.15.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Applicable Procedures" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer, redemption or exchange.
"Asset Sale" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of a Subsidiary of the Company
(other than directors' qualifying shares), including any issuance of such
Capital Stock, or (ii) property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;
provided, however, that an Asset Sale shall not include (a) any sale, transfer
or other disposition of shares of Capital Stock, property or assets by a
Restricted Subsidiary of the Company to the Company or to any Restricted
Subsidiary that is a Wholly Owned Subsidiary of the Company, (b) any sale,
transfer or other disposition of defaulted receivables for collection, (c) any
isolated sale, transfer or other disposition that does not involve aggregate
consideration in excess of $[500,000] individually, (d) the grant in the
ordinary course of business of any non-exclusive license of patents, trademarks,
registrations therefor and other similar intellectual property, (e) any Lien (or
foreclosure thereon) securing Indebtedness to the extent that such Lien is
granted in compliance with Section 4.13, (f) any Restricted Payment permitted by
Section 4.12, (g) any disposition of assets or property to the extent such
assets are obsolete, worn-out or no longer useful in the Company's or any
Restricted Subsidiaries' business, (h) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company as
permitted by Article V; provided, that the assets not so sold, leased, conveyed,
disposed of or otherwise transferred shall be deemed an Asset Sale or (i) any
disposition that constitutes a Change of Control.
"Asset Sale Offer" shall have the meaning specified in Section
4.20.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance with
GAAP.
"Bankruptcy Law" means title 11, U.S. Code, or any similar
federal, state or foreign law for the relief of debtors.
2
"Beneficial Owner" has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" have a
corresponding meaning.
"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 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 duly
adopted resolution of the Board of Directors of such Person.
"Borrowing Base Amount" means, as to the Company and its
Restricted Subsidiaries, the sum of (x) [50]% of Finished Goods Inventory plus
(y) [65]% of Raw Materials Inventory plus (z) [85]% of Receivables, determined
on a consolidated basis in accordance with GAAP; provided, that, the Borrowing
Base Amount may not exceed at any time 110% of the Borrowing Base Amount as of
the date of this Indenture.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be so required to be capitalized on the
balance sheet in accordance with GAAP.
"Capital Stock" means (i) any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (ii) in the case of a partnership, partnership interests (whether general
or limited) and (iii) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash" 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.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than six months from the date of acquisition, (iii) certificates of
deposit and Eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any
3
domestic commercial bank having capital and surplus in excess of $500,000,000,
(iv) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (ii) and (iii) entered
into with any financial institution meeting the qualifications specified in
clause (iii) above, (v) commercial paper having the highest rating obtainable
from Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation and in
each case maturing within six months after the date of acquisition and (vi)
shares of any money market mutual fund, or similar fund, in each case having
assets in excess of $500,000,000, which invests solely in investments of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the
following:
(1) prior to the first public offering of common stock of
the Company, NFC Castings or AFC Holdings, the Permitted Holders cease to be the
Beneficial Owners, directly or indirectly, of, in the aggregate, a majority of
the total voting power of the Voting Stock of the Company, whether as a result
of issuance of securities of NFC Castings or AFC Holdings (or any other direct
or indirect parent of the Company) or the Company, any merger, consolidation,
liquidation or dissolution of NFC Castings or AFC Holdings (or any other direct
or indirect parent of the Company) or the Company or any direct or indirect
transfer of securities by NFC Castings or AFC Holdings (or any other direct or
indirect parent of the Company) or the Company or otherwise;
(2) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the properties or
assets of AFC Holdings, NFC Castings or the Company and the Restricted
Subsidiaries, taken as a whole, to any "person" (as that term is used in Section
13(d)(3) of the Exchange Act);
(3) the adoption of a plan relating to the liquidation or
dissolution of NFC Castings or AFC Holdings (or any other direct or indirect
parent of the Company) or the Company;
(4) the consummation of any transaction, after the first
public offering of common stock of the Company, the result of which is that any
"person" (as referenced in clause (2) above), other than the Permitted Holders,
becomes the Beneficial Owner, directly or indirectly, of, in the aggregate, more
than 35% of the total voting power of the Voting Stock of the Company, NFC
Castings or AFC Holdings, whether as a result of issuance of securities of NFC
Castings or AFC Holdings (or any other direct or indirect parent of the Company)
or the Company, any merger, consolidation, liquidation or dissolution of NFC
Castings or AFC Holdings (or any other direct or indirect parent of the Company)
or the Company or otherwise, provided, however, that the Permitted Holders
Beneficially Own, directly or indirectly, less than such "person"; or
(5) the first day on which a majority of the members of
the Board of Directors of either the Company, NFC Castings or AFC Holdings are
not Continuing Directors;
4
provided, however, for purposes of clauses (1) and (4), the Permitted Holders
shall be deemed to Beneficially Own any Voting Stock of a Person held by any
other Person (the "parent entity") so long as the Permitted Holders Beneficially
Own, directly or indirectly, in the aggregate a majority of the voting power of
the Voting Stock of the parent entity.
"Change of Control Offer" shall have the meaning specified in
Section 4.21.
"Change of Control Payment Date" shall have the meaning
specified in Section 4.21.
"Change of Control Put Date" shall have the meaning specified
in Section 4.21.
"Change of Control Repurchase Price" shall have the meaning
specified in Section 4.21.
"Clearstream" means Clearstream Banking S.A. and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all of the property in which the Company or
any Subsidiary Guarantor now or hereafter has rights or the power to pledge or
transfer a security interest to secure all Obligations under the Notes, pursuant
to the Collateral Documents, including all of the assets that are subject to
Priority Liens.
"Collateral Agent" shall have the meaning set forth in the
Collateral Documents.
"Collateral Documents" means each security agreement between
the Trustee, the Collateral Agent and each of the Company, the Subsidiary
Guarantors, and each stock pledge, deed of trust, mortgage and fleet mortgage
executed by the Company or any Subsidiary Guarantor creating a lien that secures
the Notes and the Subsidiary Guarantees, each collateral assignment of any other
documents creating a Lien that, after giving effect to such collateral
assignment, secures the Notes or any Subsidiary Guarantee.
"Commission" means the Securities and Exchange Commission.
"Commitment Fee" means the Commitment Fee payable to the
Permitted Holders pursuant to the Standby Funding Commitment Letters, dated June
[ ], 2003, between the Company and each of the Permitted Holders.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangement entered into by the
Company or any of its Restricted Subsidiaries designed to protect the Company or
any of
5
its Restricted Subsidiaries against fluctuations in the price of commodities
actually used in the ordinary course of business of the Company and its
Restricted Subsidiaries.
"Common Stock" means, with respect to any Person, Capital
Stock of such Person that does not rank prior, as to the payment of dividends or
as to the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to this Indenture, and
thereafter means such successor.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the aggregate consolidated interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid or accrued, of such Person
and its Restricted Subsidiaries for such period (including (i) amortization of
original issue discount and deferred financing costs and non-cash interest
payments and accruals, (ii) the interest portion of all deferred payment
obligations, calculated in accordance with the effective interest method, and
(iii) the interest component of any payments associated with Capital Lease
Obligations and net payments (if any) pursuant to Hedging Obligations, in each
case, to the extent attributable to such period, but excluding (x) commissions,
discounts and other fees and charges incurred with respect to letters of credit
and bankers' acceptances financing and (y) any interest expense on Indebtedness
of another Person that is Guaranteed by such Person or secured by a Lien on
assets of such Person) determined in accordance with GAAP. Consolidated Interest
Expense of the Company shall not include any prepayment premiums or amortization
of original issue discount or deferred financing costs, to the extent such
amounts are incurred as a result of the prepayment on the date of this Indenture
of any Indebtedness of the Company with the proceeds of the Notes.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP, adjusted to exclude (only to the extent included and
without duplication): (i) all gains which are extraordinary, unusual or are
non-recurring (including any gain from the sale or other disposition of assets
outside the ordinary course of business or from the issuance or sale of Capital
Stock); (ii) all gains resulting from currency or hedging transactions; (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition; (iv) depreciation,
amortization or other expenses recorded as a result of the application of
purchase accounting in accordance with Accounting Principles Board Opinions Nos.
16 and 17; and (v) the cumulative effect of a change in accounting principles;
provided that (a) the Net Income of any Person that is not a Subsidiary or that
is accounted for by the equity method of accounting shall be included only to
the extent of the amount of cash dividends or cash distributions actually paid
to the referent Person or a Wholly Owned Subsidiary thereof that is a Restricted
Subsidiary and (b) the Net Income of any Person that is an Unrestricted
Subsidiary shall
6
be included only to the extent of the amount of cash dividends or cash
distributions paid to the referent Person or a Restricted Subsidiary thereof.
"Continuing Director" means, as of any date of determination,
any member of the Board of Directors of the Company or ACP Holdings who (i) was
a member of such Board of Directors on the date of this Indenture or (ii) was
nominated for election or elected to such Board of Directors with the
affirmative vote of a majority of the Continuing Directors who were members of
such Board of Directors at the time of such nomination or election.
"Covenant Defeasance" shall have the meaning specified in
Section 8.3.
"Credit Agreement" means the Credit Agreement, dated [ ],
2003, among the Company, the guarantors party thereto, the lenders from time to
time party to such agreement, [ ], as Administrative Agent and [ ], as
Syndication Agent, including any related notes, collateral documents, letters of
credit and documentation and guarantees and any appendices, exhibits or
schedules to any of the foregoing, as well as any and all of such agreements
(and any other agreements that refinance any and all such agreements), as may be
amended, restated, modified or supplemented from time to time, or renewed,
refunded, refinanced, restructured, replaced, repaid or extended from time to
time, whether with the original agents and lenders and other agents or lenders.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any of its Restricted Subsidiaries in the ordinary course
of business against fluctuation in the values of the currencies of the countries
(other than the United States) in which the Company or its Restricted
Subsidiaries conduct business.
"Default" means any event or condition that is, or with the
passage of time or the giving of notice, or both, would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in
Section 2.12.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.6 or 2.10
hereof, in substantially the form of Exhibit A hereto except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depositary with respect to the Notes, until a successor shall have been
appointed and become such
7
pursuant to the applicable provision of this Indenture, and, thereafter,
"Depositary" shall mean or include such successor.
"Disqualified Stock" means any 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 or is convertible or exchangeable for Indebtedness at the option
of the holder thereof, in whole or in part, on or prior to 90 days after the
Stated Maturity of the Notes; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
Stated Maturity of the Notes shall not constitute Disqualified Stock if (i) the
"asset sale" or "change of control" provisions applicable to such Capital Stock
are no more favorable to the holders of such Capital Stock than the provisions
in favor of Holders of Notes set forth under Section 4.20 and Section 4.21, as
the case may be, (ii) such Capital Stock specifically provides that such Person
will not repurchase or redeem any such stock pursuant to such provision prior to
the Company's repurchase of such Notes as are required to be repurchased
pursuant to Section 4.20 and Section 4.21 and (iii) such Capital Stock is
redeemable within 90 days of the "asset sale" or "change of control" events
applicable to such Capital Stock.
"Distribution Compliance Period" means the 40-day distribution
compliance period as defined in Regulation S.
"Domestic Restricted Subsidiary" means any Restricted
Subsidiary other than (a) a Foreign Restricted Subsidiary or (b) a Subsidiary of
a Foreign Restricted Subsidiary.
"DTC" shall have the meaning specified in Section 2.3.
"EBITDA" means, for any period, an amount equal to, for the
Company and its consolidated Restricted Subsidiaries:
(a) the sum of Consolidated Net Income for such
period, plus the following to the extent reducing Consolidated
Net Income for such period:
(1) the provision for taxes based on income or
profits or utilized in computing net loss,
(2) Consolidated Interest Expense,
(3) depreciation,
(4) amortization of intangibles, and
8
(5) any other non-cash items (other than any such
non-cash item to the extent that it represents an accrual of,
or reserve for, cash expenditures in any future period), minus
(b) all non-cash items increasing Consolidated Net
Income for such period (other than any such non-cash item to
the extent that it will result in the receipt of cash payments
in any future period).
Notwithstanding the foregoing clause (a), the provision for
taxes and the depreciation, amortization and non-cash items of a Restricted
Subsidiary shall be added to Consolidated Net Income to compute EBITDA only to
the extent (and in the same proportion) that the net income of such Restricted
Subsidiary was included in calculating Consolidated Net Income and only if a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
shareholders.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of
the Euroclear systems, and any successor thereto.
"Event of Default" shall have the meaning specified in Section
6.1.
"Excess Proceeds" shall have the meaning specified in Section
4.20.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission thereunder.
"Exchange Notes" means Notes registered under the Securities
Act to be exchanged for Notes not so registered, pursuant to and as set forth in
a Registration Rights Agreement relating to such an exchange.
"Exchange Offer" has the meaning set forth in a Registration
Rights Agreement relating to an exchange of Notes registered under the
Securities Act for Notes not so registered.
"Exchange Offer Registration Statement" has the meaning set
forth in a Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such assets) which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction;
9
provided, that, the Fair Market Value of any such asset or assets shall be
determined by the Board of Directors of the Company, acting in good faith and by
unanimous resolution, and which determination shall be evidenced by an Officers'
Certificate delivered to the Trustee.
"Finished Goods Inventory" means, with respect to the Company,
the consolidated finished goods inventory of the Company, net of reserves,
determined in accordance with GAAP.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary which is not organized under the laws of the United States of America
or any State thereof or the District of Columbia.
"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 have been approved by a significant segment
of the accounting profession, which are in effect in the United States on the
date of this Indenture.
"Global Note Legend" means the legend set forth in Section
2.6(g)(ii) hereof, which is required to be placed on all Global Notes issued
under this Indenture.
"Global Notes" means the global Notes in the form of Exhibit A
hereto that contain the Global Note Legend, issued in accordance with Article 2
hereof.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) Interest Rate Agreements, (ii) Currency
Agreements and (iii) Commodity Agreements.
"Holder" or "Noteholder" means the person in whose name a Note
is registered on the Registrar's books.
"IAI Global Note" means a Global Note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors, if any, to the extent
required by Applicable Procedures.
"Indebtedness" means, with respect to any Person, without
duplication, any indebtedness of such Person, whether or not contingent, in
respect of borrowed
10
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof) or bankers'
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability upon
a balance sheet of such Person prepared in accordance with GAAP, as well as all
indebtedness of others secured by a Lien on any asset of such Person (whether or
not such indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee of any Indebtedness of such Person or any
other Person.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Notes" means US$[ ].0 million aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act.
"Intercompany Indebtedness" shall have the meaning specified
in Section 4.11.
"Interest Payment Date" means the stated due date of an
installment of interest on the Notes.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement entered into by the Company or any of its
Restricted Subsidiaries designed to protect the Company or any of its Restricted
Subsidiaries in the ordinary course of business against fluctuations in interest
rates.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including Guarantees), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities and all other items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP.
"Issue Date" means the date of first issuance of the Notes
under this Indenture.
11
"Legal Defeasance" shall have the meaning specified in Section
8.2.
"Lenders" means, at any time, the parties to the Credit
Agreement then holding (or committed to provide) loans, letters of credit or
other extensions of credit that constitute (or when provided will constitute)
Indebtedness secured by a Priority Lien outstanding under the Credit Agreement.
"Letter of Transmittal" means the letter of transmittal, or
its electronic equivalent in accordance with the Applicable Procedures, to be
prepared by the Company and sent to all Holders of the Initial Notes or any
Additional Notes for use by such Holders in connection with an Exchange Offer.
"Leverage Ratio" means the ratio of:
(a) the outstanding Indebtedness of the Company and
the Restricted Subsidiaries on a consolidated basis on the
date of calculation, to
(b) the LTM Pro Forma EBITDA.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.)
"LTM Pro Forma EBITDA" means Pro Forma EBITDA for the four
most recent consecutive fiscal quarters ending at least 45 days prior to the
date of determination for which financial statements are available.
["Management Plans" means the [Neenah Foundry Company ( )]
Stock Option Plan, as such plan may be amended from time to time or such other
similar compensation plans which may be adopted by the Company or ACP Holdings.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any sale of assets (including,
without limitation, dispositions pursuant to sale/leaseback transactions) or (b)
the disposition of any securities or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries, and (ii) any extraordinary
gain (but not loss), together with any related provision for taxes on such
extraordinary gain (but not loss).
12
"Net Proceeds" means the aggregate amount of consideration
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale in the form of cash or Cash Equivalents (including, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating to
such Asset Sale (including, without limitation, legal, accounting and investment
banking fees, and sales commissions) and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets (including Equity Interests) the
subject of such Asset Sale and any reserve for adjustment in respect of the sale
price of such asset or assets.
"New Credit Facility" means the credit facilities provided
under the Credit Agreement.
"NFC Castings" means NFC Castings, Inc., a Delaware
corporation.
"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Note Lien" means a Lien granted pursuant to the Collateral
Documents as security for the Note Obligations.
"Note Obligations" means the Notes (including without
limitation, any Additional Notes), the Subsidiary Guarantees and all other
Obligations of the Company or any Subsidiary Guarantor under this Indenture, the
Notes (including without limitation, any Additional Notes), the Subsidiary
Guarantees and the Collateral Documents.
"Notice of Default" shall have the meaning specified in
Section 6.1(d).
"Obligations" means with respect to any Indebtedness, the
principal of premium, if any, and interest on (such interest on such
Indebtedness, wherever referred to in this Indenture, is deemed to include
interest accruing after the filing of a petition initiating any proceeding
pursuant to any bankruptcy law in accordance with and at the rate (including any
rate applicable upon any default or event of default, to the extent lawful)
specified in any document evidencing such Indebtedness, whether or not the claim
for such interest is allowed as a claim after such filing in any proceeding
under such bankruptcy law) and other amounts, including, but not limited to,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to the Company, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller or the Secretary of the Company.
13
"Officers' Certificate" means, with respect to any Person, a
certificate signed by (i) the Chief Executive Officer or President and (ii) the
Chief Financial Officer or chief accounting officer of such Person.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee and which complies with the
requirements of Sections 14.4 and 14.5.
"Original Issue Date" of any Note (or portion thereof) means
the earlier of (a) the date of such Note or (b) the date of any Note (or portion
thereof) for which such Note was issued (directly or indirectly) on registration
of transfer, exchange or substitution.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively, and, with respect to DTC, shall include Euroclear and
Clearstream.
"Paying Agent" shall have the meaning specified in Section
2.3.
"Payment Default" shall have the meaning specified in Section
6.1(e).
"Permitted Holders" means each of MacKay Xxxxxxx LLC, Citicorp
Venture Capital, Equity Group Investments, Inc., Exis Capital Management and
Trust Company of The West and its Related Persons and Affiliates.
"Permitted Investments" means (i) any Investment in the
Company or in a Wholly Owned Subsidiary of the Company that is a Restricted
Subsidiary; (ii) any Investment in Cash Equivalents; (iii) Investments by the
Company or any Restricted Subsidiary of the Company in a Person, if as a result
of such Investment (a) such Person becomes a Wholly Owned Subsidiary of the
Company that is a Restricted Subsidiary or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Wholly Owned
Subsidiary of the Company that is a Restricted Subsidiary; and (iv) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made in compliance with Section 4.20.
"Permitted Liens" means (i) Liens in favor of the Company or a
Restricted Subsidiary; (ii) Liens securing Senior Indebtedness of the Company or
a Restricted Subsidiary that was permitted to be incurred pursuant to this
Indenture; provided, however, that the aggregate principal amount of such
Indebtedness secured by such Liens shall not exceed an aggregate of $[ ] million
at any one time outstanding; (iii) Liens on property at the time the Company or
any Restricted Subsidiary acquired such property, including any acquisition by
means of a merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that any such Lien may not extend to any other
property of the Company or any Restricted Subsidiary; provided further, however,
that such Liens shall not have been incurred in anticipation of or in
14
connection with the transaction or series of transactions pursuant to which such
property was acquired by the Company or any Restricted Subsidiary; (iv) Liens on
property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company; provided that such Liens were not created
in contemplation of such acquisition and do not extend to any other assets of
the Company or any Restricted Subsidiary of the Company; (v) Liens on the
property of the Company or any Restricted Subsidiary Incurred in the ordinary
course of business to secure performance of obligations with respect to
statutory or regulatory requirements, performance or return-of-money bonds,
surety bonds or other obligations of a like nature and incurred in a manner
consistent with industry practice, in each case which are not Incurred in
connection with the borrowing of money, the obtaining of advances or credit or
the payment of the deferred purchase price of property and which do not in the
aggregate impair in any material respect the use of property in the operation of
the business of the Company and the Restricted Subsidiaries taken as a whole;
(vi) Liens existing on the date of this Indenture; (vii) Liens for taxes,
assessments or governmental charges or levies on the property of the Company or
any Restricted Subsidiary if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision that shall be required
in conformity with GAAP shall have been made therefor; (viii) Liens imposed by
law, such as mechanics', carriers', warehousemen's, materialmen's and vendors'
Liens, incurred in good faith in the ordinary course of business with respect to
amounts not yet delinquent or being contested in good faith by appropriate
proceedings if a reserve or other appropriate provisions, if any, shall be
required by GAAP shall have been made therefor; (ix) zoning restrictions,
easements, licenses, covenants, reservations, restrictions on the use of real
property or minor irregularities of title incident thereto that do not, in the
aggregate, materially detract from the value of the property or the assets of
the Company or impair the use of such property in the operation of the Company's
business; (x) judgment Liens to the extent that such judgments do not cause or
constitute a Default or an Event of Default; (xi) Liens to secure the payment of
all or a part of the purchase price of property or assets acquired or
constructed in the ordinary course of business on or after the date of this
Indenture, provided that (a) such property or assets are used in the same or a
similar line of business as the Company was engaged in on the date of this
Indenture, (b) at the time of incurrence of any such Lien, the aggregate
principal amount of the obligations secured by such Lien shall not exceed the
cost of the assets or property (or portions thereof) so acquired or constructed,
(c) each such Lien shall encumber only the assets or property (or portions
thereof) so acquired or constructed and shall attach to such property within 120
days of the purchase or construction thereof and (d) any Indebtedness secured by
such Lien shall have been permitted to be incurred under Section 4.11; (xii)
precautionary filings of any financial statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction made in connection with
Capital Lease Obligations permitted to be incurred under Section 4.11, provided
that such Lien does not violate clauses (a), (b) and (c) of clause (xi) hereof;
and (xiii) Liens on the property, plants and equipment of the Company and any
Restricted Subsidiary and on the Capital stock of the Subsidiaries created by
this Indenture and the Collateral Document
15
securing the Notes and the Subsidiary Guarantees; (xiv) Liens permitted by the
Collateral Documents; and (xv) liens incurred in the ordinary course of business
securing assets having a fair market value not in excess of $[500,000] in the
aggregate.
"Permitted Refinancing" shall have the meaning specified in
Section 4.11.
"Person" or "person" means an individual, limited or general
partnership, corporation, limited liability company, association, unincorporated
organization, trust, joint stock company or joint venture, or a government or
any agency or political subdivision thereof.
"Priority Liens" means the first priority Liens granted with
respect to the Collateral by the Company and the Subsidiary Guarantors pursuant
to the Credit Agreement securing the Obligations of the Company and the
Subsidiary Guarantors under such agreement.
"Priority Lien Documents" means the Credit Agreement, the
Priority Lien Security Documents and all other agreements governing, securing or
relating to any Priority Lien Obligations.
"Priority Lien Obligations" means the Indebtedness evidenced
by the Credit Agreement and all other Obligations of the Company or any
Subsidiary Guarantor thereunder or under the Priority Lien Documents.
"Priority Lien Security Documents" means one or more security
agreements, pledge agreements, collateral assignment, mortgages, deed of trust
or other grants or transfers for security executed and delivered by the Company
or any Subsidiary Guarantor creating a Lien upon property owned or to be
acquired by the Company or such Subsidiary Guarantor in favor of any Lenders
party to the Credit Agreement, or any trustee, agent or representative acting
for any such holders, as security for any Priority Lien Obligations.
"principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, any applicable premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend set forth in
Section 2.6(g)(i) hereof to be placed on all Notes issued under this Indenture
except as otherwise permitted by the provisions of this Indenture.
"Pro Forma EBITDA" means, for any period, the EBITDA of the
Company and its consolidated Restricted Subsidiaries, after giving effect to the
following:
if:
(a) since the beginning of such period, the Company
or any Restricted Subsidiary shall have made any Asset Sale or
an Investment (by
16
merger or otherwise) in any Restricted Subsidiary (or any
Person that becomes a Restricted Subsidiary) or an acquisition
of property,
(b) the transaction giving rise to the need to
calculate Pro Forma EBITDA is such an Asset Sale, Investment
or acquisition, or
(c) since the beginning of such period any Person
(that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary
since the beginning of such period) shall have made such an
Asset Sale, Investment or acquisition,
EBITDA for such period shall be calculated after giving pro forma
effect to such Asset Sale, Investment or acquisition as if such Asset Sale,
Investment or acquisition occurred on the first day of such period.
"property" means any right or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Purchase Money Obligations" of any Person means any
obligations of such Person or any of its Restricted Subsidiaries to any seller
or any other Person incurred or assumed in connection with the purchase of real
or personal property to be used in the business of such Person or any of its
subsidiaries within 180 days of such incurrence or assumption.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Stock" means any Capital Stock of the Company that
is not Disqualified Stock.
"Raw Materials Inventory" means, with respect to the Company,
the consolidated raw materials and work-in-process inventory of the Company, net
of reserves, determined in accordance with GAAP.
"Receivables" means the consolidated trade receivables of the
Company, net of allowance for doubtful accounts, as determined in accordance
with GAAP.
"Record Date" means a Record Date specified in the Notes
whether or not such Record Date is a Business Day.
"Redemption Date" means, when used with respect to any Note to
be redeemed, the date fixed for such redemption pursuant to Article III of this
Indenture and Paragraph 5 in the form of Note.
"Redemption Price" means, when used with respect to any Note
to be redeemed, the redemption price for such redemption pursuant to Paragraph 5
in the form of Note, which shall include, without duplication, in each case,
accrued and unpaid interest, if any, to and including the Redemption Date.
17
"Refinancing Indebtedness" shall have the meaning specified in
Section 4.11.
"Registered Exchange Offer" shall have the meaning given such
term in the Registration Rights Agreement.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means that certain
Registration Rights Agreement, dated as of the date of this Indenture, between
the Company and [the Permitted Holders], as such agreement may be amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Related Business" means any business which is the same as or
related, ancillary or complementary to any of the businesses of the Company and
its Restricted Subsidiaries on the date hereof.
"Related Person" of any Person means any other Person directly
or indirectly owning (a) 5% or more of the outstanding Common Stock of such
Person (or, in the case of a Person that is not a corporation, 5% or more of the
equity interests in such Person) or (b) 5% or more of the combined voting power
of the Voting Stock of such Person.
"Representative" means any trustee, agent to representative
(if any) for an issue of Senior Indebtedness of the Company.
"Repurchase Date" shall have the meaning specified in Section
4.20.
"Repurchase Offer Period" shall have the meaning specified in
Section 4.20.
"Repurchase Price" shall have the meaning specified in Section
4.20.
"Restricted Investment" means an Investment other than a
Permitted Investment. With respect to Unrestricted Subsidiaries or Restricted
Subsidiaries, the amount of Restricted Investments shall be calculated as the
greater of (i) the book value of assets contributed by the Company or a
Restricted Subsidiary or (ii) the Fair Market Value of the assets contributed by
the Company or a Restricted Subsidiary (as certified by a resolution of
independent directors of the Company if Fair Market Value or book value is
greater than $[1,000,000]).
"Restricted Payment" shall have the meaning specified in
Section 4.12.
"Restricted Subsidiary" means (i) any Subsidiary of the
Company (other than a Subsidiary that is also a Subsidiary of an Unrestricted
Subsidiary) organized or acquired after the date of this Indenture, unless such
Subsidiary shall have been designated as an Unrestricted Subsidiary by
resolution of the Board of Directors as
18
provided in and in compliance with the definition of "Unrestricted Subsidiary"
and (ii) any Unrestricted Subsidiary which is designated as a Restricted
Subsidiary by the Board of Directors of the Company; provided that immediately
after giving effect to the designation referred to in clause (ii), no Default or
Event of Default shall have occurred and be continuing and the Company could
incur at least $1.00 of additional Indebtedness under Section 4.11. The Company
shall evidence any such designation to the Trustee by promptly filing with the
Trustee an Officers' Certificate certifying that such designation has been made
and stating that such designation complies with the requirements of the
immediately preceding sentence.
"Revolver" means the revolving credit facility extended to the
Company as part of the New Credit Facility under the Credit Agreement.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Senior Indebtedness" means, with respect to the Company and
Subsidiary Guarantors, the Obligations of the Company and the Subsidiary
Guarantors under the Credit Agreement.
"Senior Subordinated Notes" means the Company's 13% Senior
Subordinated Notes due 2013, issued pursuant to an Indenture, dated [ ], 2003,
among the Company, the Subsidiary Guarantors party thereto and [ ], as
trustee, and any securities issued in exchange or in substitution therefor.
"Shelf Registration Statement" has the meaning set forth in
any Registration Rights Agreement relating to registering Notes under the
Securities Act.
"Special Record Date" for payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity," when used with respect to any Note, means
[ ], 2013.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries
19
of that Person or a combination thereof and (ii) any partnership (a) the sole
general partner or the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Persons or one or more Subsidiaries of such Person or any combination thereof.
"Subsidiary Guarantee" means a guarantee on the terms set
forth in this Indenture by a Subsidiary Guarantor of the Company's obligations
with respect to the Notes.
"Subsidiary Guarantor" means each Domestic Restricted
Subsidiary and any other Person that becomes a Subsidiary Guarantor pursuant to
the provisions of Section 4.18 hereof or who otherwise exercises and delivers
supplemental indenture to the Trustee providing for a Subsidiary Guarantee.
"Term Loan" means the term loan made to the Company as part of
the New Credit Facility under the Credit Agreement.
"TIA" means the Trust Indenture Act of 1939, as amended and in
effect on the date of the execution of this Indenture unless otherwise specified
herein.
"Transfer Restricted Notes" means the Notes that bear or are
required to bear the Private Placement Legend.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
division (or any successor group) of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
"Unrestricted Definitive Notes" means one or more Definitive
Notes that do not and are not required to bear the Private Placement Legend.
"Unrestricted Global Notes" means one or more Global Notes
that do not and are not required to bear the Private Placement Legend and are
deposited with and registered in the name of the Depositary or its nominee.
"Unrestricted Subsidiary" means, until such time as any of the
following shall be designated as a Restricted Subsidiary of the Company by the
Board of Directors of the Company as provided in and in compliance with the
definition of "Restricted Subsidiary," (i) any Subsidiary of the Company or of a
Restricted Subsidiary of the Company organized or acquired after the date of
this Indenture that is designated
20
concurrently with its organization or acquisition as an Unrestricted Subsidiary
by resolution of the Board of Directors of the Company, (ii) any Subsidiary of
any Unrestricted Subsidiary and (iii) any Restricted Subsidiary of the Company
that is designated as an Unrestricted Subsidiary by resolution of the Board of
Directors of the Company, provided that (a) immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and be
continuing, (b) any such designation shall be deemed, at the election of the
Company at the time of such designation, to be either (but not both) (x) the
making of a Restricted Payment at the time of such designation in an amount
equal to the Investment in such Subsidiary subject to the restrictions contained
in Section 4.12 or (y) the making of an Asset Sale at the time of such
designation in an amount equal to the Investment in such Subsidiary subject to
the restrictions contained in Section 4.20, and (c) such Subsidiary or any of
its Subsidiaries does not own any Capital Stock or Indebtedness of, or own or
hold any Lien on any property of, the Company or any other Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so designated. A Person
may be designated as an Unrestricted Subsidiary only if and for so long as such
Person (i) has no Indebtedness other than Non- Recourse Debt; (ii) is a Person
with respect to which neither the Company nor any of its Restricted Subsidiaries
has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to make any payment to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and (iii) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries. The Company shall evidence any designation pursuant
to clause (i) or (iii) of the first sentence hereof to the Trustee by filing
with the Trustee within 45 days of such designation an Officers' Certificate
certifying that such designation has been made and, in the case of clause (iii)
of the first sentence hereof, the related election of the Company in respect
thereof.
"U.S. Government Obligations" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers, general partners or trustees of any Person (irrespective of whether or
not, at the time, Capital Stock of any other class or classes shall have, or
might have, voting power by reasons of the happening of any contingency) or,
with respect to a partnership (whether general or limited), any general partner
interest in such partnership.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest
21
one-twelfth) that will elapse between such date and the making of such payment,
by (ii) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person 100% of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall be at the time be
beneficially owned by such Person either directly or indirectly through Wholly
Owned Subsidiaries.
SECTION 1.2 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:
(1) "indenture securities" means the Notes.
(2) "indenture security holder" means a Holder or a
Noteholder.
(3) "indenture to be qualified" means this Indenture.
(4) "indenture trustee" or "institutional trustee" means
the Trustee.
(5) "obligor" on the indenture securities means the
Company and any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
thereby.
SECTION 1.3 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;
(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;
22
(7) references to Sections or Articles means reference to
such Section or Article in this Indenture, unless stated otherwise; and
(8) terms defined in this Article include the plural as
well as the singular.
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage
in addition to those set forth in Exhibit A hereto. The Company shall approve
the form of the Notes and any notation, legend or endorsement on them. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and 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. To the
extent any provision of any Note conflicts with the express provisions of the
Indenture, the provisions of this Indenture shall govern and be controlling. To
the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling.
(a) Global Notes. Subject to the right of the Holders to
take Definitive Notes, the Notes issued hereunder shall be evidenced by one or
more Global Notes, deposited with the Trustee, as custodian for the Depositary,
and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and transfers of interests therein in accordance with the terms of
this Indenture. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the principal amount of outstanding Notes represented
thereby shall be made by the Trustee or Note Custodian, at the election of the
23
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.6 hereof.
Except as set forth in Section 2.6 hereof, the Global Notes
may be transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.1(b) shall
apply only to Global Notes deposited with the Trustee, as custodian for the
Depositary. Participants and Indirect Participants shall have no rights under
this Indenture or any Global Note with respect to any Global Note held on their
behalf by the Depositary or by the Trustee as custodian for the Depositary, and
the Depositary shall be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note 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 Depositary or impair, as between the Depositary and its Participants or
Indirect Participants, the Applicable Procedures or the operation of customary
practices of the Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Note.
(c) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
(d) Definitive Notes. Notes issued in certificated form
shall be substantially in the form of Exhibit A attached hereto registered in
the name of the Holder thereof, substantially in the form of Exhibit A hereto
except that such Notes shall not bear the Global Note Legend and shall not have
the Schedule of Exchanges of Interests in the Global Note attached thereto.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be impressed, affixed, imprinted
or reproduced on the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time the Note is authenticated, the Note shall nevertheless
be valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated pursuant to the terms of this Indenture.
24
The Trustee shall, upon written order of the Company signed by
two Officers, authenticate Notes for original issue in the aggregate principal
amount of up to $[ ] in one or more series. The aggregate principal amount of
Notes outstanding at any time may not exceed $[ ] except as provided in
Section 2.8. As of the date of this Indenture, there shall be issued,
authenticated and outstanding not more than $[ ] aggregate principal amount of
Notes. The written order shall specify the amount of Notes to be authenticated
and the date on which the Notes are to be authenticated.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Notes 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, any Affiliate of the Company, or any of their
respective Subsidiaries.
SECTION 2.3 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency, where Notes
may be presented for registration of transfer or for exchange ("Registrar") and
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes (including principal and
interest thereon) and of their transfer and exchange. The Company may have one
or more co-Registrars and one or more additional Paying Agents. The term
"Registrar" includes any co-Registrars and the term "Paying Agent" includes any
additional Paying Agent. The Company or any of its Restricted Subsidiaries may
act as Paying Agent or Registrar.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to Agent not a party to
this Indenture. The Company shall promptly notify the Trustee in writing 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 and shall be duly compensated
therefor in accordance with the Trustee's customary fees for providing such
service.
The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company hereby initially appoints the Trustee as
Registrar and Paying Agent, and the Trustee hereby initially agrees so to act.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to any Global Notes.
The Company initially appoints the Trustee to act as Note
Custodian with respect to any Global Notes.
25
SECTION 2.4 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 Holders and the Trustee all assets held by the Paying Agent for the
payment of principal, premium and interest with respect to the Notes (whether
such assets have been distributed to it by the Company or any other obligor on
the Notes), and shall notify the Trustee in writing of any Default in making any
such payment. If either of the Company or a Subsidiary of the Company acts as
Paying Agent, it shall segregate such assets and hold them as a separate trust
fund for the benefit of the Holders and the Trustee. 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 (if other than the Company or an Affiliate of the Company) shall
have no further liability for such assets.
SECTION 2.5 NOTEHOLDER 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 Holders and shall otherwise comply with Section 312(a) of the TIA.
If the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee reasonably may require of the names and addresses of Holders
(which list may be conclusively relied upon by the Trustee) and the Company
shall otherwise comply with Section 312(a) of the TIA.
SECTION 2.6 TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. A Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. The Company
shall exchange Global Notes for Definitive Notes if: (1) the Company delivers to
the Trustee a notice from the Depositary that the Depositary is unwilling or
unable to continue to act as Depositary for the Global Notes or that it has
ceased to be a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Company within 120 days
after the date of such notice from the Depositary; (2) the Company at its option
determines that the Global Notes shall be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee; or (3) a Default or
Event of Default shall have occurred and be continuing. Upon the occurrence of
any of the preceding events in clauses (1), (2) or (3) above, Definitive Notes
shall be issued in denominations of US $1,000 or integral multiples thereof and
in such names as the Depositary shall instruct the Trustee in
26
writing. Global Notes also may be exchanged or replaced, in whole or in part, as
provided in Sections 2.7 and 2.10 hereof. Except as provided above, every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.6(a), and beneficial interests in a Global Note may not be
transferred and exchanged other than as provided in Section 2.6(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary in accordance with the provisions
of this Indenture and the Applicable Procedures. Beneficial interests in
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in Global Notes also shall require compliance
with either clause (i) or (ii) below, as applicable, as well as one or more of
the other following clauses, as applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement
Legend and any Applicable Procedures; provided, however, that prior to
the expiration of the Distribution Compliance Period, transfers of
beneficial interests in Regulation S Global Note may not be made to or
for the account or benefit of a "U.S. Person" (as defined in Rule
902(k) of Regulation S) (other than a "distributor" (as defined in Rule
902(d) of Regulation S)). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note.
Except as may be required by any Applicable Procedures, no written
orders or instructions shall be required to be delivered to the
Registrar to effect the transfers described in this Section 2.6(b)(i).
(ii) All Other Transfers and Exchanges of
Beneficial Interests in Global Notes. In connection with all transfers
and exchanges of beneficial interests that are not subject to Section
2.6(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) if permitted under Section 2.6(a)
hereof, (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest
27
to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person
in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (B)(1) above. Upon consummation of
an Exchange Offer by the Company in accordance with Section 2.6(f)
hereof, the requirements of this Section 2.6(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction
of all of the requirements for transfer or exchange of beneficial
interests in Global Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section
2.6(h) hereof.
(iii) Transfer of Beneficial Interests in a
Restricted Global Note to Another Restricted Global Note. A beneficial
interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the
requirements of Section 2.6(b)(ii) above and the Registrar receives the
following:
(A) if the transferee will take
delivery in the form of a beneficial interest in a 144A Global Note,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof or, if
permitted by Applicable Procedures, item (3) thereof; and
(B) if the transferee will take
delivery in the form of a beneficial interest in a Regulation S Global
Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transferee is required by
Applicable Procedures to take delivery in the form of a beneficial
interest in an IAI Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(iv) Transfer and Exchange of Beneficial
Interests in a Restricted Global Note for Beneficial Interests in an
Unrestricted Global Note. A beneficial interest in any Restricted
Global Note may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Note or transferred to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if the exchange or transfer complies with
the requirements of Section 2.6(b)(ii) above and:
(A) such exchange or transfer is
effected pursuant to an Exchange Offer in accordance with a
Registration Rights Agreement and the
28
holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, makes any and
all certifications in the applicable Letter of Transmittal (or is
deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights
Agreement;
(B) such transfer is effected pursuant
to a Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a
broker-dealer pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the holder of such
beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in
item (1)(a) thereof; or
(2) if the holder of such
beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
shall be effected in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend shall no longer be required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to clause (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall execute and, upon receipt of an Authentication Order in accordance
with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred pursuant to clause (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests
in Unrestricted Global Notes for Beneficial Interests in Restricted
Global Notes Prohibited. Beneficial interests in an Unrestricted Global
Note may not be exchanged for, or
29
transferred to Persons who take delivery thereof in the form of,
beneficial interests in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(i) Beneficial Interests in Restricted Global
Notes to Restricted Definitive Notes. Subject to Section 2.6(a) hereof,
if any holder of a beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is
being transferred to a QIB in accordance with Rule 144A, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is
being transferred to a "non U.S. Person" (as defined in Rule 902(k) of
Regulation S) in an offshore transaction in accordance with Rule 903 or
Rule 904, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is
being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 under
the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is
being transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the Securities
Act other than those listed in clauses (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3)(d) thereof, as applicable; or
(F) if such beneficial interest is
being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof,
the Trustee shall reduce or cause to be reduced in a corresponding amount
pursuant to Section 2.6(h) hereof the aggregate principal amount of the
applicable Restricted Global Note, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.2 hereof, the
Trustee shall authenticate and deliver a Restricted
30
Definitive Note in the appropriate principal amount to the Person designated by
the holder of such beneficial interest in instructions delivered to the
Registrar by the Depositary and the applicable Participant or Indirect
Participant on behalf of such holder. Any Restricted Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.6(c)(i) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall designate in such instructions. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such Notes are so
registered. Any Restricted Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.6(c)(i) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes. Subject to Section 2.6(a)
hereof, a holder of a beneficial interest in a Restricted Global Note
may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is
effected pursuant to an Exchange Offer in accordance with a
Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of
a transfer, makes any and all certifications in the applicable Letter
of Transmittal (or is deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be required
by such Registration Rights Agreement;
(B) such transfer is effected pursuant
to a Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a
broker-dealer pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the holder of such
beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such
beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
31
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
shall be effected in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend shall no longer be required in order
to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses of
this Section 2.6(c)(ii) the Company shall execute, and, upon receipt of an
Authentication Order in accordance with Section 2.2 hereof, the Trustee shall
authenticate and deliver an Unrestricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial
interest in instructions delivered to the Registrar by the Depositary and the
applicable Participant or Indirect Participant on behalf of such holder, and the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.6(h) hereof the aggregate principal amount of the applicable
Restricted Global Note.
(iii) Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes. Subject to Section 2.6(a)
hereof, if any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note or to transfer such beneficial interest to
a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note, then, upon satisfaction of the applicable conditions
set forth in Section 2.6(b)(ii) hereof, the Trustee shall reduce or
cause to be reduced in a corresponding amount pursuant to Section
2.6(h) hereof the aggregate principal amount of the applicable
Unrestricted Global Note, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.2
hereof, the Trustee shall authenticate and deliver an Unrestricted
Definitive Note in the appropriate principal amount to the Person
designated by the holder of such beneficial interest in instructions
delivered to the Registrar by the Depositary and the applicable
Participant or Indirect Participant on behalf of such holder. Any
Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.6(c)(iii) shall be registered in
such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall designate in such
instructions. The Trustee shall deliver such Unrestricted Definitive
Notes to the Persons in whose names such Notes are so registered. Any
Unrestricted Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.6(c)(iii) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for
Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial
Interests in Restricted Global Notes. If any holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted
Definitive Notes to a Person who takes delivery thereof in
32
the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the holder of such Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note
is being transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note
is being transferred to a "non U.S. Person" (as defined in Rule 902(k)
of Regulation S) in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note
is being transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note
is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the
Securities Act other than those listed in clauses (B) through (D)
above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3)(d) thereof, if applicable; or
(F) if such Restricted Definitive Note
is being transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased in a corresponding amount pursuant to Section 2.6(h) hereof the
aggregate principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, a 144A Global Note, in
the case of clause (C) above, a Regulation S Global Note, and in all other
cases, an IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note only if:
33
(A) such exchange or transfer is
effected pursuant to a Exchange Offer in accordance with a Registration
Rights Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a transfer,
makes such certifications in the applicable Letter of Transmittal (or
is deemed to have made such certifications if delivery is made through
the Applicable Procedures) as may be required by such Registration
Rights Agreement;
(B) such transfer is effected pursuant
to a Shelf Registration Statement in accordance with a Registration
Rights Agreement;
(C) such transfer is effected by a
broker-dealer pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the holder of such
Restricted Definitive Note proposes to exchange such Note for
a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the holder of such
Restricted Definitive Note proposes to transfer such Note to a
Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
shall be effected in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend shall no longer be required in order
to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the clauses in
this Section 2.6(d)(ii), the Trustee shall cancel such Restricted Definitive
Note and increase or cause to be increased in a corresponding amount pursuant to
Section 2.6(h) hereof the aggregate principal amount of the Unrestricted Global
Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Note
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note at any time. Upon
34
receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Unrestricted Definitive Note and increase
or cause to be increased in a corresponding amount pursuant to Section
2.6(h) hereof the aggregate principal amount of one of the Unrestricted
Global Notes.
(iv) Transfer or Exchange of Unrestricted
Definitive Notes to Beneficial Interests in Restricted Global Notes
Prohibited. An Unrestricted Definitive Note may not be exchanged for,
or transferred to Persons who take delivery thereof in the form of,
beneficial interests in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If
any such exchange or transfer of a Definitive Note for a beneficial
interest in an Unrestricted Global Note is effected pursuant to clause
(ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt
of an Authentication Order in accordance with Section 2.2 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive
Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for
Definitive Notes. Upon request by a holder of Definitive Notes and such holder's
compliance with the provisions of this Section 2.6(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such holder. In addition, the requesting holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.6(e).
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made
pursuant to Rule 144A, a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made
pursuant to Rule 903 or Rule 904, a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made
pursuant to any other exemption from the registration requirements of
the Securities Act, a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
35
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is
effected pursuant to an Exchange Offer in accordance with a
Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of
a transfer, makes such certifications in the applicable Letter of
Transmittal (or is deemed to have made such certifications if delivery
is made through the Applicable Procedures) as may be required by such
Registration Rights Agreement;
(B) any such transfer is effected
pursuant to a Shelf Registration Statement in accordance with a
Registration Rights Agreement;
(C) any such transfer is effected by a
broker-dealer pursuant to an Exchange Offer Registration Statement in
accordance with a Registration Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the holder of such
Restricted Definitive Notes proposes to exchange such Notes
for an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the holder of such
Restricted Definitive Notes proposes to transfer such Notes to
a Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this clause (D), if the
Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer shall be effected in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend shall no longer be
required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the clauses of
Section 2.6(e)(ii) the Trustee shall cancel the prior
Restricted Definitive Note and the Company shall execute, and,
upon receipt of an Authentication Order in accordance with
Section 2.2 hereof, the Trustee shall authenticate and deliver
an Unrestricted Definitive Note in the appropriate principal
36
amount to the Person designated by the holder of such prior
Restricted Definitive Note in instructions delivered to the
Registrar by such holder.
(iii) Unrestricted Definitive Notes to
Unrestricted Definitive Notes. A holder of Unrestricted Definitive
Notes may transfer such Notes to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Note. Upon receipt of a request
to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the
Holders thereof.
(f) Exchange Offer. Upon the occurrence of an Exchange
Offer in accordance with a Registration Rights Agreement, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.2 hereof, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the applicable Restricted Global Notes (A) tendered for
acceptance by Persons that make any and all certifications in the applicable
Letters of Transmittal (or are deemed to have made such certifications if
delivery is made through the Applicable Procedures) as may be required by such
Registration Rights Agreement, and (B) accepted for exchange in the Exchange
Offer and (ii) Unrestricted Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes tendered for
acceptance by Persons who made the foregoing certification and accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such Notes,
the Trustee shall reduce or cause to be reduced in a corresponding amount the
aggregate principal amount of the applicable Restricted Global Notes, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the holders of Restricted Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(g) Legends. The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by clause (B)
below, each Global Note and each Definitive Note (and all Notes issued
in exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. 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 SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
37
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL, ASSIGN, TRANSFER, PLEDGE, ENCUMBER OR OTHERWISE DISPOSE OF SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH NEENAH FOUNDRY COMPANY (THE "COMPANY") OR ANY OF ITS AFFILIATES WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (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 UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) 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 TO NON-U.S. PERSONS THAT OCCUR OUTSIDE OF THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED 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 US $250,000,
FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION OF THE SECURITIES 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, ASSIGNMENT, TRANSFER, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION 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."
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to clauses (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
1.1 (and all Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
38
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE 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."
(h) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
39
(i) General Provisions Relating to Transfers and
Exchanges.
(i) No service charge shall be made to a Holder
of a beneficial interest in a Global Note or to a Holder of a
Definitive Note 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 exchange or transfer pursuant to Sections 2.10, 3.7, 4.20,
4.21 and 9.5 hereof).
(ii) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the Company,
evidencing the same Indebtedness, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
(iii) Neither the Registrar nor the Company shall
be required (A) to issue, to register the transfer of or to exchange
any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section
3.3 hereof and ending at the close of business on the date of
selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date (including a
Regular Record Date) and the next succeeding Interest Payment Date.
(iv) Prior to due presentment for the
registration of a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all
other purposes, in each case regardless of any notice to the contrary.
(v) All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar pursuant
to this Section 2.6 to effect a registration of transfer or exchange
may be submitted by facsimile.
(vi) The Trustee is hereby authorized and
directed to enter into a letter of representation with the Depositary
in the form provided by the Company and to act in accordance with such
letter.
SECTION 2.7. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims and submits an affidavit or other evidence, satisfactory
to the Trustee, to the Trustee to the effect that the Note has been lost,
destroyed or wrongfully taken, the
40
Company shall issue and the Trustee shall authenticate a replacement Note 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 Note is
replaced. The Company may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion,
may, instead of issuing a new Note, pay such Note, upon satisfaction of the
conditions set forth in the preceding paragraph.
Every new Note issued pursuant to this Section 2.7 in lieu of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
such new Note shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
SECTION 2.8. OUTSTANDING NOTES.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee (including any Note represented by a Global Note)
except those cancelled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee hereunder
and those described in this Section 2.8 as not outstanding. A Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note, except as provided in Section 2.9.
If a Note is replaced pursuant to Section 2.7 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.7.
If on a Redemption Date the Paying Agent (other than the
Company or an Affiliate of the Company) holds Cash or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the Notes
payable on that date in accordance with Section 3.6 hereof and payment of the
Notes called for redemption is not otherwise prohibited pursuant to this
Indenture, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
41
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, amendment, supplement, waiver
or consent, Notes 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, amendment, supplement,
waiver or consent, only Notes that the Trustee knows are so owned shall be
disregarded. The Trustee may require an Officer's Certificate listing Notes
owned by the Company, a subsidiary of the Company or an Affiliate of the
Company.
SECTION 2.10. TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, the Company may
prepare and, upon written order of the Company specifying the amount of
Temporary Notes and date on which the Temporary Notes are to be authenticated,
the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Company reasonably and in good faith considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Global Notes or Definitive Notes in exchange for temporary Notes.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as permanent Notes authenticated and
delivered hereunder.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or an Affiliate of the Company), and no one else, shall cancel and,
at the written direction of the Company, shall dispose of all Notes surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.7 and the
Registered Exchange Offer, the Company may not issue new Notes to replace Notes
that have been paid or delivered to the Trustee for cancellation. No Notes shall
be authenticated in lieu of or in exchange for any Notes cancelled as provided
in this Section 2.11, except as expressly permitted in the form of Notes and as
permitted by this Indenture.
SECTION 2.12. DEFAULTED INTEREST.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Note (or one or more predecessor Notes) is registered at the
close of business on the Record Date for such interest.
42
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, interest payable on the defaulted interest at the same rate per
annum borne by the Notes (collectively, herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder on the relevant
Record Date, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make
payment of any Defaulted Interest to the persons in whose
names the Notes (or their respective predecessor Notes) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Note and the date of the proposed
payment, and at the same time the Company shall deposit with
the Trustee an amount of Cash equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such Cash
when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest as provided in
this clause (1). Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Note register not less than 10
days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the persons in whose names the Notes
(or their respective predecessor Notes) are registered on such
Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any
Defaulted Interest in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such
manner shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.12, each
Note delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other
43
Note shall carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Note.
SECTION 2.13. PERSONS DEEMED OWNERS.
The Company, the Trustee, any Paying Agent and any
authenticating agent may treat the Person in whose name any Note is registered
as the owner of such Note for the purpose of receiving payments of principal of,
premium, if any, or interest on such Note and for all other purposes. None of
the Company, the Trustee, any Paying Agent or any authenticating agent shall be
affected by any notice to the contrary.
SECTION 2.14. ISSUANCE OF ADDITIONAL NOTES
The Company shall be entitled, subject to its compliance with
Section 4.9 hereof, to issue Additional Notes under this Indenture which shall
have identical terms as the Initial Notes issued on the date hereof, other than
with respect to the date of issuance, issue price and rights under a related
Registration Rights Agreement, if any. The Initial Notes issued on the date
hereof, any Additional Notes and all Exchange Notes issued in exchange therefor
shall be treated as a single class for all purposes under this Indenture,
including without limitation, directions, waivers, consents, redemptions and
Offers to Purchase.
With respect to any Additional Notes, the Company shall set
forth in a Board Resolution and an Officers' Certificate, a copy of each of
which shall be delivered to the Trustee, the following information:
(a) the aggregate principal amount of such Additional
Notes to be authenticated and delivered pursuant to this Indenture;
(b) the issue price, the issue date and the CUSIP and/or
ISIN number of such Additional Notes; provided, however, that no Additional
Notes may be issued at a price that would cause such Additional Notes to have
"original issue discount" within the meaning of Section 1273 of the Code; and
(c) whether such Additional Notes shall be subject to the
restrictions on transfer set forth in Section 2.6 hereof relating to Restricted
Global Notes and Restricted Definitive Notes.
ARTICLE III
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
Redemption of Notes, as permitted by any provision of this
Indenture, shall be made in accordance with Paragraph 5 of the Notes and this
Article III.
44
SECTION 3.2. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.8 hereof and Paragraph 5 of the Notes, it
shall notify the Trustee in an Officer's Certificate of the Redemption Date, the
Redemption Price, the principal amount of Notes to be redeemed and stating that
the redemption will comply with the conditions contained herein and whether it
wants the Trustee to give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Notes
to be redeemed pursuant to Section 3.8 hereof and Paragraph 5 of the Notes by
crediting against any such redemption Notes it has not previously delivered to
the Trustee for cancellation, it shall so notify the Trustee of the amount of
the reduction and deliver such Notes with such notice.
The Company shall give each notice to the Trustee provided for
in this Section 3.2 at least 45 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee). Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.3. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed in such manner as complies
with any applicable depositary, legal and national securities exchange or
automated quotation system if any, on which the Notes are listed or, if the
Notes are not so listed, on a pro rata basis, by lot or by such other method as
the Trustee shall determine to be fair and appropriate, provided that no Notes
of $1,000 principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof to be
redeemed. The Trustee may select for redemption portions (equal to $1,000 or any
integral multiple thereof) of the principal of Notes that have denominations
larger than $1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.4. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall send a notice of redemption to the Trustee and to each
Holder, by first class mail, whose Notes are to be redeemed. 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
Notes to be redeemed and shall state:
45
(1) the Redemption Date;
(2) the Redemption Price, including the
amount of accrued and unpaid interest, if any, to be paid upon
such redemption;
(3) the name, address and telephone
number of the Paying Agent;
(4) that Notes called for redemption
must be surrendered to the Paying Agent at the address
specified in such notice to collect the Redemption Price;
(5) that, unless (a) the Company
defaults in its obligation to deposit Cash with the Paying
Agent in accordance with Section 3.6 hereof or (b) such
redemption payment is prohibited pursuant to this Indenture,
Notes called for redemption cease to accrue interest on and
after the Redemption Date, and the only remaining right of the
Holders of such Notes is to receive payment of the Redemption
Price, including accrued and unpaid interest thereon to, but
excluding, the Redemption Date, upon surrender to the Paying
Agent of the Notes called for redemption and to be redeemed;
(6) if any Note is being redeemed in
part, the portion of the principal amount, equal to $1,000 or
any integral multiple thereof, of such Note to be redeemed and
that, after the Redemption Date, and upon surrender of such
Note, a new Note or Notes in aggregate principal amount equal
to the unredeemed portion thereof will be issued;
(7) if less than all the Notes are to
be redeemed, the identification of the particular Notes (or
portion thereof) to be redeemed, as well as the aggregate
principal amount of such Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after
such partial redemption;
(8) the CUSIP number of the Notes to be
redeemed; and
(9) that the notice is being sent
pursuant to this Section 3.4 and pursuant to the redemption
provisions of Paragraph 5 of the Notes.
SECTION 3.5. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.4, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including accrued and unpaid interest, if any, to
the Redemption Date.
46
Upon surrender to the Trustee or Paying Agent, such Notes called for redemption
shall be paid at the Redemption Price, including accrued and unpaid interest, if
any, to, but excluding, the Redemption Date; provided that if the Redemption
Date is after a regular Record Date and on or prior to the corresponding
Interest Payment Date, the accrued interest shall be payable to the Holder of
the redeemed Notes registered on the relevant Record Date; and provided,
further, that if a Redemption Date is not a Business Day, payment shall be made
on the next succeeding Business Day and no interest shall accrue for the period
from such Redemption Date to such succeeding Business Day.
SECTION 3.6. DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit
with the Paying Agent (other than the Company or an Affiliate of the Company)
Cash sufficient to pay the Redemption Price of, including accrued and unpaid
interest on all Notes to be redeemed on such Redemption Date (other than Notes
or portions thereof called for redemption on that date that have been delivered
by the Company to the Trustee for cancellation). The Paying Agent shall promptly
return to the Company any Cash so deposited which is not required for that
purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the
other provisions of this Article III and payment of the Notes called for
redemption is not prohibited under this Indenture, interest on the Notes to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment. Notwithstanding anything
herein to the contrary, if any Note surrendered for redemption in the manner
provided in the Notes shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
shall continue to accrue and be paid from the Redemption Date until such payment
is made on the unpaid principal, and, to the extent lawful, on any interest not
paid on such unpaid principal, in each case at the rate and in the manner
provided in Section 4.1 hereof and the Note.
SECTION 3.7. NOTES REDEEMED IN PART.
Upon surrender of a Note that is to be redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Note or Notes equal in
principal amount to the unredeemed portion of the Note surrendered.
SECTION 3.8. OPTIONAL REDEMPTION.
The Notes may not be redeemed prior to [ ], 2007. On or after
[ ], 2007, the Notes may be redeemed in whole or from time to time in part at
any time, at the option of the Company, at the Redemption Prices (expressed as a
percentage of principal amount) set forth below with respect to the indicated
Redemption Date, in each case, plus any accrued but unpaid interest to, but
excluding, the Redemption Date.
47
If redeemed during
the 12-month period
beginning Redemption Price
------------------- ----------------
2007................................................ 105.500%
2008................................................ 104.125%
2009................................................ 102.750%
2010................................................ 100.000%
SECTION 3.9. MANDATORY REDEMPTION.
Except as set forth under Sections 4.20 and 4.21 hereof, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
ARTICLE IV
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes. An installment of
principal of, or interest on the Notes shall be considered paid on the date it
is due if the Trustee or Paying Agent (other than the Company or an Affiliate of
the Company) holds for the benefit of the Holders, on or before 10:00 a.m. New
York City time on that date, Cash deposited and designated for and sufficient to
pay the installment.
The Company shall pay interest on overdue principal and on
overdue installments of interest at the rate specified in the Notes compounded
semi-annually, to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written 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 14.2.
The Company may also from time to time designate one or more
other offices or agencies where the Notes 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
48
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company shall 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 corporate trust office of the Trustee as such office.
SECTION 4.3. CORPORATE EXISTENCE.
Subject to Article V, 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 of them and the
rights (charter and statutory) and corporate franchises of the Company and each
of its Subsidiaries; 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 (a) the
Company shall, in good faith, reasonably determine that the preservation thereof
is no longer desirable in the conduct of the business of such entity and (b) the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company shall,
and shall cause each of its Subsidiaries to, 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 the Company
or any of its Subsidiaries or any of their respective properties and assets and
(ii) all lawful claims, whether for labor, materials, supplies, services or
anything else, which have become due and payable and which by law have or may
become a Lien upon the property and assets of the Company or any of its
Subsidiaries; provided, however, that neither the Company nor any Subsidiary
shall be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been established in accordance with GAAP.
SECTION 4.5. MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company shall cause all material properties used or useful
to the conduct of its business and the business of each of its Subsidiaries to
be maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) 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 reasonable good faith judgment may be
necessary, so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
4.5 shall prevent the Company or any Subsidiary from discontinuing any operation
or maintenance of any of such properties, or disposing of any of them, if such
49
discontinuance or disposal is (a) in the judgment of the Company, desirable in
the conduct of the business of such entity and (b) not disadvantageous in any
material respect to the Holders.
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 judgment
of the Company is adequate and appropriate for the conduct of the business of
the Company and such Subsidiaries in a prudent manner, with (except for
self-insurance) 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 judgment of the Company and adequate and appropriate for the conduct of
the business of the Company and such Subsidiaries in a prudent manner for
entities similarly situated in their industry, unless 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 or such Subsidiary.
SECTION 4.6. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee within 120
days after the end of its fiscal year an Officers' Certificate complying with
Section 314(a)(4) of the TIA and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture and the Collateral Documents and further stating, as to each such
Officer signing such certificate, whether or not the signer knows of any failure
by the Company or any Subsidiary of the Company to comply with any conditions or
covenants in this Indenture and the Collateral Documents and, if such xxxxxx
does know of such a failure to comply, the certificate shall describe such
failure with particularity. The Officers' Certificate shall also notify the
Trustee should the relevant fiscal year end on any date other than the current
fiscal year end date.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly upon becoming aware of any
Default, Event of Default or fact which would prohibit the making of any payment
to or by the Trustee in respect of the Notes, an Officers' Certificate
specifying such Default, Event of Default or fact and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be deemed
to have knowledge of any Default, any Event of Default or any such fact unless
one of its Trust Officers receives notice thereof from the Company or any of the
Holders.
SECTION 4.7. REPORTS.
Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
deliver to the Trustee and to each Holder and to prospective purchasers of Notes
identified to the Company, within 15
50
days after it is or would have been required to file such with the Commission,
annual and quarterly consolidated financial statements substantially equivalent
to financial statements that would have been included in reports filed with the
Commission if the Company was subject to the requirements of Section 13 or 15(d)
of the Exchange Act, including, with respect to annual information only, a
report thereon by the Company's certified independent public accountants as such
would be required in such reports to the Commission and, in each case, together
with a management's discussion and analysis of financial condition and results
of operations which would be so required.
SECTION 4.8. LIMITATION ON STATUS AS INVESTMENT COMPANY.
Neither the Company nor any of its Subsidiaries shall become
an "investment company" (as that term is defined in the Investment Company Act
of 1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
SECTION 4.9. 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 which would prohibit or forgive the Company from paying
all or any portion of the principal of, premium of, interest on the Notes 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 4.10. RULE 144A INFORMATION REQUIREMENT.
If at any time there are Transfer Restricted Notes outstanding
and the Company shall cease to have a class of equity securities registered
under Section 12(g) of the Exchange Act or shall cease to be subject to Section
15(d) of the Exchange Act, the Company shall furnish to the Holders or
beneficial holders of the Notes and prospective purchasers of Notes designated
by the Holders of Transfer Restricted Notes, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
until such time as the Shelf Registration Statement has become effective under
the Securities Act. The Company shall also furnish such information during the
pendency of any suspension of effectiveness of the Shelf Registration Statement.
SECTION 4.11. LIMITATION ON THE INCURRENCE OF INDEBTEDNESS
AND ISSUANCE OF DISQUALIFIED STOCK.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise
51
become directly or indirectly liable with respect to (collectively, "incur" and,
correlatively, "incurred" and "incurrence") any Indebtedness (including, without
limitation, Acquired Debt), and the Company shall not issue any Disqualified
Stock and shall not permit any of its Restricted Subsidiaries to issue any
preferred stock; provided, however, that the Company may incur Indebtedness
(including Acquired Debt) if after giving effect to the incurrence of such
Indebtedness and the application of the proceeds thereof, the Leverage Ratio of
the Company and its Restricted Subsidiaries (on a consolidated basis) would not
exceed 4.00 to 1.00.
The foregoing limitations shall not apply to:
(i) Indebtedness incurred by the Company under
the Credit Agreement in an aggregate principal amount not to exceed the
Borrowing Base Amount;
(ii) Indebtedness represented by the Senior
Subordinated Notes;
(iii) additional Indebtedness incurred by the
Company in respect of Capital Lease Obligations or Purchase Money
Obligations in an aggregate principal amount not to exceed
$[10,000,000] at any time outstanding;
(iv) Indebtedness represented by the Notes and
this Indenture;
(v) [Hedging Obligations; provided that the
notional principal amount of any Interest Rate Agreement does not
exceed the principal amount of the Indebtedness to which such agreement
relates; provided, further, that any Currency Agreement does not
increase the outstanding loss potential or liabilities other than as a
result of fluctuations in foreign currency exchange rates;]
(vi) [Hedging Obligations incurred by the Company
pursuant to agreements or other arrangements designed to protect the
Company against fluctuations in interest rates and/or currency exchange
rates resulting from its borrowings under the Credit Agreement;]
(vii) additional unsecured Indebtedness which is
subordinate in right of payment to the Notes, not to exceed $5,000,000
at any time outstanding;
(viii) Indebtedness of the Company to any of its
Wholly Owned Subsidiaries that is a Restricted Subsidiary, and
Indebtedness of any Wholly Owned Subsidiary of the Company that is a
Restricted Subsidiary to the Company or any of its Wholly Owned
Subsidiaries that is a Restricted Subsidiary (the Indebtedness incurred
pursuant to this clause (viii) being hereinafter referred to as
"Intercompany Indebtedness"); provided that in the case of Indebtedness
of the Company such obligations shall be unsecured and subordinated in
all respects to the Company's obligations pursuant to the Notes;
provided, further, that an incurrence of Indebtedness shall be deemed
to have occurred upon (a) any sale or
52
other disposition of Intercompany Indebtedness to a Person other than
the Company or any of its Restricted Subsidiaries, (b) any sale or
other disposition of Equity Interests of any Restricted Subsidiary of
the Company which holds Intercompany Indebtedness such that such
Restricted Subsidiary ceases to be a Restricted Subsidiary after such
sale or other disposition or (c) designation of a Restricted Subsidiary
as an Unrestricted Subsidiary; and
(ix) the incurrence by the Company of
Indebtedness issued in exchange for, or the proceeds of which are used
to extend, refinance, renew, replace, defease or refund Indebtedness
incurred pursuant to the Leverage Ratio test set forth in the first
paragraph of this covenant or pursuant to clauses (i), (ii) or (iv) of
this covenant in whole or in part (the "Refinancing Indebtedness");
provided, however, that (A) the aggregate principal amount of such
Refinancing Indebtedness shall not exceed the aggregate principal
amount of Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded; (B) the Refinancing Indebtedness shall have a
Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (C) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is pari passu with or subordinated in right of payment to the
Notes, the Refinancing Indebtedness shall be pari passu with or
subordinated, as the case may be, in right of payment to the Notes on
terms at least as favorable to the Holders of Notes as those contained
in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded (any such
extension, refinancing, renewal, replacement, defeasance or refunding
being referred to as a "Permitted Refinancing").
SECTION 4.12. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make
any distribution on account of Equity Interests, other than
(A) dividends or distributions
payable in Equity Interests (other than
Disqualified Stock) of the Company; or
(B) dividends or distributions
payable to the Company or a Wholly Owned
Subsidiary of the Company that is a
Restricted Subsidiary;
(ii) purchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Company or any
Affiliate of the Company (other than any such Equity Interests owned by
the Company or a Wholly Owned Subsidiary of the Company that is a
Restricted Subsidiary);
53
(iii) purchase, redeem, repay, defease or
otherwise acquire or retire for value any Indebtedness that is
subordinated in right of payment to the Notes;
(iv) make any Investment (other than a
Permitted Investment); or
(all such payments and other actions set
forth in clauses (i) through (iv) above being collectively referred to
as "Restricted Payments");
unless, at the time of and after giving effect to such Restricted
Payment:
(A) no Default or Event of
Default shall have occurred and be continuing or would occur as a
consequence thereof;
(B) the Company would, at the
time of such Restricted Payment and after giving pro forma effect
thereto as if such Restricted Payment had been made at the beginning of
the applicable four-quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Leverage Ratio
test set forth in Section 4.11; and
(C) such Restricted Payment
(the amount of any such payment, if other than cash, to be determined
in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a resolution in an Officers' Certificate
delivered to the Trustee), together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries
after the date of this Indenture (including Restricted Payments
permitted by the next succeeding paragraph, except as set forth
therein), shall not exceed the sum of (w) 50% of the Consolidated Net
Income of the Company for the period (taken as one accounting period)
commencing on the first day of the Company's first fiscal quarter
beginning after the initial issuance of the Notes and ending on the
last day of the Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, 100% of such deficit as a negative number), plus (x) 100%
of the aggregate net cash proceeds received by the Company from the
issuance or sale since the date of initial issuance of the Notes of
Equity Interests of the Company or of debt securities of the Company
that have been converted into such Equity Interests (other than Equity
Interests (or convertible debt securities) sold to a Subsidiary of the
Company and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock), plus (y) the aggregate cash
received by the Company as capital contributions to the Company after
the date of initial issuance of the Notes (other than from a
Subsidiary), plus (z) any cash received by the Company after the date
of initial issuance of the Notes as a dividend or distribution from any
of its Unrestricted Subsidiaries or from the sale of any of its
Unrestricted Subsidiaries less the cost of disposition and taxes, if
any (but in each case excluding any such amounts included in
Consolidated Net Income).
54
(b) The foregoing provisions shall not prohibit:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at said date of declaration
such payment would have complied with the provisions of this Indenture;
(ii) the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company, or the
defeasance, redemption or repurchase of subordinated Indebtedness in
exchange for, or out of the proceeds of, the substantially concurrent
sale (other than to a Subsidiary of the Company) of Equity Interests of
the Company (other than any Disqualified Stock) or out of the net
proceeds of a substantially concurrent cash capital contribution
received by the Company; provided that the amount of any such proceeds
that are utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from Section
4.2(C)(x);
(iii) the repayment, defeasance, redemption or
repurchase of subordinated Indebtedness with the net proceeds from an
incurrence of Refinancing Indebtedness in a Permitted Refinancing;
(iv) the repayment, defeasance, redemption or
repurchase of Senior Subordinated Notes for an aggregate purchase price
of $15,000,000 or less;
(v) any Investment made with the proceeds of a
substantially concurrent sale (other than to a Restricted Subsidiary of
the Company) of Capital Stock of the Company (other than Disqualified
Stock); provided, however, the proceeds of such sale shall not be (and
have not been) included in Section 4.12(a)(C) hereof;
(vi) other restricted payments of up to
$[3,000,000/5,000,000]; or
(vii) [the payment of a dividend or distribution
by any Subsidiary of the Company, directly or indirectly, to the
Company to pay its taxes or its Subsidiaries' taxes or the payment of a
dividend or distribution by the Company, directly or indirectly, to ACP
Holdings, sufficient for ACP Holdings to pay its consolidated, combined
or unitary U.S. federal, state and local taxes; provided that such
dividend(s) or distribution(s) shall not exceed the aggregate amount of
the Company's and its Subsidiaries' allocable share of such
consolidated, combined or unitary group's tax liabilities determined in
accordance with the Internal Revenue Code of 1986, as amended, or
applicable state or local law];
provided, further, however, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (i), (ii) and (iii) no Default or
Event of Default shall have occurred and be continuing; provided, further, that
the Restricted Payments
55
described in clauses (vi) and (vii), shall not be counted in computing the
aggregate amount of all Restricted Payments made pursuant to this Indenture.
For purposes of the foregoing calculations, the amount of any
Investment that constitutes a Restricted Payment shall be equal to the greater
of (i) the net book value of such Investment and (ii) the fair market value of
such Investment (in each case as certified by a resolution of the independent
directors of the Company if the book value or fair market value of such
investment exceeds $[1,000,000]).
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.12 were computed, which calculations may
be based upon the Company's latest available financial statements.
SECTION 4.13. LIMITATION ON LIENS.
The Company shall not, and shall not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Liens on any asset now owned or acquired after the date of
this Indenture or any income or profits therefrom or assign or convey any right
to receive income therefrom, except Permitted Liens; provided, that, in the case
of Permitted Liens securing Indebtedness that is expressly subordinate or junior
in right of payment to the Notes or a Subsidiary Guarantee, the Notes or such
Subsidiary Guarantee is secured by a Lien on such property, assets or proceeds
that is senior in priority to such Liens.
SECTION 4.14. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (a)
on its Capital Stock or (b) with respect to any other interest or
participation in, or measured by, its profits;
(ii) pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries;
(iii) make loans or advances to the Company or any
of its Restricted Subsidiaries; or
(iv) transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries;
56
except for such encumbrances or restrictions existing under or by reason of (a)
the Senior Indebtedness [as in effect on the date of this Indenture], (b) this
Indenture, the Notes and the Collateral Documents, (c) applicable law, (d) any
instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired, (e)
customary nonassignment provisions in leases entered into in the ordinary course
of business and consistent with past practices, (f) Purchase Money Obligations
for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iv) above on the property so
acquired, or (g) Refinancing Indebtedness; provided that the restrictions
contained in the agreements governing such Refinancing Indebtedness are no more
restrictive with respect to the provisions set forth in clauses (i), (ii), (iii)
and (iv) above than those contained in the agreements governing the Indebtedness
being refinanced.
SECTION 4.15. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not and shall not permit, cause, or suffer
any Restricted Subsidiary of the Company to, directly or indirectly, sell,
lease, license, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that
are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable
arms' length transaction by the Company or such Restricted Subsidiary
with an unrelated Person; and
(ii) the Company delivers to the Trustee (a) with
respect to any Affiliate Transaction involving aggregate payments in
excess of $500,000, a resolution of the Board of Directors set forth in
an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and such Affiliate Transaction is
approved by a majority of the disinterested members, if any, of the
Board of Directors and (b) with respect to any Affiliate Transaction
involving aggregate payments in excess of $[5,000,000], an opinion as
to the fairness to the Company or such Restricted Subsidiary from a
financial point of view issued by a nationally recognized independent
financial advisor;
provided, however, that (i) any reasonable fees and compensation provided to,
and indemnity provided on behalf of, officers, directors and employees of the
Company and its Restricted Subsidiaries as determined in good faith by the Board
of Directors of the Company, (ii) transactions between or among the Company and
its Wholly Owned Subsidiaries that are Restricted Subsidiaries, (iii) Restricted
Payments permitted by
57
Section 4.12 (iv) payment of principal of, premium, if any, and interest on the
Notes or the Senior Subordinated Notes held by Affiliates and (v) payment of the
Commitment Fee, in each case, shall not be deemed to be Affiliate Transactions.
SECTION 4.16. LIMITATION ON LINES OF BUSINESS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than a Related Business.
SECTION 4.17. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any sale and leaseback transaction; provided, however,
that the Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction if:
(a) the Company or that Restricted Subsidiary, as
applicable, could have (i) Incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction under the
Leverage Ratio test set forth in Section 4.11 hereof and (ii) created a Lien on
such property securing Attributable Debt pursuant to the provisions of Section
4.13 hereof;
(b) the net cash proceeds of such sale and leaseback
transaction are at least equal to the fair market value, as determined in good
faith by the Board of Directors and set forth in an Officers' Certificate
delivered to the Trustee, of the property that is the subject of that sale and
leaseback transaction; and
(c) the transfer of assets in such sale and leaseback
transaction is permitted by, and the Company or such Restricted Subsidiary
applies the proceeds of such transaction in compliance with, the provisions of
Section 4.21 hereof.
SECTION 4.18. FUTURE GUARANTORS.
The Company shall cause each Person that (a) becomes a
Domestic Restricted Subsidiary following the date of this Indenture and (b)
guarantees any Indebtedness of the Company or any Subsidiary thereof to execute
and deliver to the Trustee a Subsidiary Guarantee at the time such Person
becomes obligated under any such Guarantee.
SECTION 4.19. PAYMENTS FOR CONSENT.
Neither the Company, nor any of the Company's Subsidiaries,
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any holder of any Notes for or
as an inducement to any consent, waiver or amendment of any of the terms or
provisions hereof or the Notes unless such consideration is offered to be paid
or agreed to be paid to all holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
58
SECTION 4.20. ASSET SALES.
Neither the Company nor any of its Restricted Subsidiaries
shall engage in any Asset Sale, unless:
(i) the Company or such Restricted Subsidiary,
as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value (evidenced by a resolution
of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets sold or otherwise disposed of;
and
(ii) at least 20% of the consideration therefor
received by the Company or such Restricted Subsidiary is in the form of
Cash or Cash Equivalents; provided, however, that if the Fair Market
Value of the assets sold or otherwise disposed of exceeds $10,000,000,
at least 80% of the consideration therefor received by the Company or
such Restricted Subsidiaries is in the form of Cash or Cash
Equivalents;
provided, further, however, that the amount of (a) any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent balance sheet or in
the notes thereto) of the Company or such Restricted Subsidiary (other than
liabilities that are by their terms subordinated in right of payment to the
Notes) that are assumed by the transferee of any such assets and (b) any notes
or other obligations received by the Company or such Restricted Subsidiary from
such transferee that are converted within 60 days by the Company or such
Restricted Subsidiary into cash (to the extent of the cash so received), shall
be deemed to be cash for purposes of this provision.
Within 180 days after the receipt of the Net Proceeds from an
Asset Sale, the Company shall apply the Net Proceeds from such Asset Sale first,
to permanently repay or reduce the Term Loan, and to the extent such
Indebtedness is paid in full, to permanently repay or reduce the Indebtedness
evidenced by the Notes and to permanently reduce the commitment with respect to
the Revolver. Pending the final application of any such Net Proceeds, the
Company may invest such Net Proceeds in any manner that is not prohibited by
this Indenture. Any Net Proceeds from the Asset Sale that are not applied as
provided in the first sentence of this paragraph will be deemed to constitute
"Excess Proceeds."
When the aggregate cumulative amount of Excess Proceeds
exceeds $[5,000,000], the Company shall make an offer to all Holders of Notes to
purchase the maximum principal amount of Notes that may be purchased with the
Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase, in accordance with the procedures set forth in this Section 4.20 (an
"Asset Sale Offer"). To the extent that the aggregate principal amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company may use such deficiency for general corporate purposes in any manner
provided by this Indenture. If the aggregate principal amount of
59
Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero.
In the event that the Company shall be required to commence an
Asset Sale Offer to all Holders to purchase Notes pursuant to this Section 4.20,
it shall follow the procedures specified below.
The Asset Sale Offer shall be commenced within 30 days
following the first date on which the Company has cumulative Excess Proceeds of
at least $[5,000,000] and remain open for a period of at least 30 and not more
than 40 days, except to the extent that a longer period is required by
applicable law (the "Repurchase Offer Period"). No later than five Business Days
after the termination of the Offer Period (the "Repurchase Date"), the Company
shall purchase the principal amount of Notes required to be purchased pursuant
to this Section 4.20 hereof (the "Repurchase Price") or, if Notes having an
aggregate principal amount less than the amount of Excess Proceeds subject to
such Asset Sale Offer have been tendered, all Notes tendered in response to the
Asset Sale Offer. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made.
If the Repurchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee or to each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice,
which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to
this Section 4.20 and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer, the Repurchase Price and the
Repurchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Repurchase Date;
60
(e) that Holders electing to have a Note purchased
pursuant to a Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Repurchase Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Repurchase Price, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Trustee so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
The Company, the Depositary or the Paying Agent, as the case
may be, shall promptly (but in any case not later than five days after the
Repurchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon written order from the Company shall authenticate and mail or deliver such
new Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Repurchase Date.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws, rules and regulations
thereunder to the extent such laws, rules and regulations are applicable in
connection with the repurchase of Notes pursuant to Asset Sale Offer.
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SECTION 4.21. CHANGE OF CONTROL.
(a) In the event that a Change of Control occurs, each
Holder shall have the right, at such Holder's option, subject to the terms and
conditions of this Indenture, to require the Company to repurchase all or any
part of such Holder's Notes (provided, that the principal amount of such Notes
must be $1,000 or an integral multiple thereof) on a date to be established by
the Company (the "Change of Control Payment Date") after the occurrence of such
Change of Control, at a cash price (the "Change of Control Repurchase Price")
equal to 101% of the aggregate principal amount thereof, together with accrued
and unpaid interest thereon to, but excluding, the Change of Control Payment
Date.
(b) In the event that, pursuant to this Section 4.21, the
Company shall be required to commence an offer to purchase Notes (the "Change of
Control Offer"), the Company shall follow the procedures set forth in this
Section 4.21 as follows:
(1) the Company shall prepare and mail,
with a copy to the Trustee, or at the option of the Company
and at the expense of the Company, by the Trustee, the Change
of Control Offer within 30 days following a Change of Control
to each Holder of Notes;
(2) the Change of Control Offer shall
remain open for at least 30 and not more than 40 days (unless
otherwise required by applicable law) following its
commencement, except to the extent that a longer period is
required by applicable law;
(3) upon the expiration of a Change of
Control Offer, the Company shall purchase all Notes tendered
in response to the Change of Control Offer;
(4) if the Change of Control Payment
Date is on or after an interest payment record date and on or
before the related Interest Payment Date, any accrued interest
will be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no
additional interest will be payable to Noteholders who tender
Notes pursuant to the Change of Control Offer;
(5) the Company shall provide the
Trustee with notice of the Change of Control Offer at least
five Business Days before the commencement of any Change of
Control Offer; and
(6) on or before the commencement of
any Change of Control Offer, the Company or the Trustee (upon
the request and at the expense of the Company) shall send, by
first-class mail, a notice to each of the Noteholders, which
(to the extent consistent with this
62
Indenture) shall govern the terms of the Change of Control
Offer and shall state:
(i) that the Change of Control Offer is being made
pursuant to such notice and this Section 4.21 and
that all Notes, or portions thereof, tendered will be
accepted for payment;
(ii) the Change of Control Repurchase Price (including the
amount of accrued and unpaid interest) the Change of
Control Payment Date and the Change of Control Put
Date;
(iii) that any Note, or portion thereof, not tendered or
accepted for payment will continue to accrue
interest;
(iv) that, unless the Company defaults in depositing Cash
with the Paying Agent in accordance with the last
paragraph of this clause (b) or such payment is
prevented pursuant to this Indenture, any Note, or
portion thereof, accepted for payment pursuant to the
Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;
(v) that Holders electing to have a Note, or portion
thereof, purchased pursuant to a Change of Control
Offer will be required to surrender the Note, with
the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to
the Paying Agent (which may not for purposes of this
Section 4.21, notwithstanding anything in this
Indenture to the contrary, be the Company or any
Affiliate of the Company) at the address specified in
the notice prior to the close of business on the
earlier of (a) the third Business Day prior to the
Change of Control Payment Date and (b) the third
Business Day following the expiration of the Change
of Control Offer (such earlier date being the "Change
of Control Put Date");
(vi) that Holders will be entitled to withdraw their
election, in whole or in part, if the Paying Agent
(which may not for purposes of this Section 4.21,
notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the
Company) receives, up to the close of business on the
Change of Control Put Date, a telegram, telex,
facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Notes
the Holder is withdrawing and a statement that such
Holder is withdrawing his election to have such
principal amount of Notes purchased; and
63
(vii) a brief description of the events resulting in such
Change of Control.
On or before the Change of Control Date, the Company shall (i)
accept for payment Notes or portions thereof properly tendered pursuant to the
Change of Control Offer on or before the Change of Control Payment Date, (ii)
deposit with the Paying Agent Cash sufficient to pay the Change of Control
Repurchase Price of all Notes or portions thereof so tendered and (iii) deliver
to the Trustee Notes so accepted together with an Officers' Certificate listing
the Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to Holders of Notes so accepted payment in an amount equal
to the Change of Control Repurchase Price (together with accrued and unpaid
interest), and the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Note or Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. Any Notes 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 Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws, rules and regulations
thereunder to the extent such laws, rules and regulations are applicable in
connection with the repurchase of Notes pursuant to Change of Control Offer.
ARTICLE V
SUCCESSORS
SECTION 5.1. LIMITATION ON MERGER, CONSOLIDATION OR SALE
OF ASSETS.
Neither the Company nor any Subsidiary Guarantor shall not
consolidate or merge with or into (whether or not the Company or any Subsidiary
Guarantor is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person or entity unless:
(i) the Company of the Subsidiary Guarantor is
the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation organized or existing under the
laws of the United States, any state thereof or the District of
Columbia;
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all
64
the obligations of the Company under the Notes and this Indenture and
the Collateral Documents pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee;
(iii) immediately before or immediately after
giving effect to such transaction no Default or Event of Default shall
have occurred and be continuing; and
(iv) the Company or any Person formed by or
surviving any such consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made will, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Leverage
Ratio test set forth in Section 4.11.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), 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;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company's assets that meets the requirements of Section
5.1 hereof.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
65
(a) failure to pay any installment of interest on any of
the Notes as and when the same becomes due and payable, and the continuance of
such failure for a period of 30 days, whether or not such payment is prohibited
by this Indenture;
(b) failure to pay all or any part of the principal of,
or premium, if any, on the Notes when and as the same become due and payable at
maturity, redemption, repurchase or otherwise, whether or not such payment is
prohibited by this Indenture;
(c) failure by the Company to comply with the provisions
of Section 4.20, Section 4.21 or Article V;
(d) failure by the Company or any Restricted Subsidiary
to observe or perform any covenant or agreement contained in the Notes, this
Indenture (other than a default in the performance of any covenant or agreement
which is specifically dealt with elsewhere in this Section 6.1) or the
Collateral Documents, and continuance of such failure for a period of 30 days
after there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by Holders of at least 25% in
aggregate principal amount of the then outstanding Notes, a written notice
specifying such failure, requesting it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(e) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness of the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of this Indenture, which default (a) is caused by a failure to
pay principal of such Indebtedness when due and prior to the expiration of the
grace period provided in such Indebtedness (a "Payment Default") or (b) results
in the acceleration of such Indebtedness prior to its express maturity and, in
each case described in clauses (a) and (b) of this subsection (e), the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $[5,000,000] or more;
(f) failure of the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of $[5,000,000], which
judgments have not been paid, stayed, bonded or discharged for a period (during
which execution shall not be effectively stayed) of 60 days (or, in the case of
any such final judgment which provides for payment over time, which shall so
remain unstayed, unbonded or undischarged beyond any applicable payment date
provided therein);
(g) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Restricted Subsidiaries as bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization of the Company or any of its Restricted
Subsidiaries under any bankruptcy or similar law, and such decree, judgment, or
order shall have continued undischarged and unstayed for
66
a period of 60 days; or a decree or order of a court of competent jurisdiction
over the appointment of a receiver, liquidator, trustee, or assignee in
bankruptcy or insolvency of the Company, any of its Restricted Subsidiaries, or
of the property of any such Person, or for the winding up or liquidation of the
affairs of any such Person, shall have been entered, and such decree, judgment,
or order shall have remained in force undischarged and unstayed for a period of
60 days; or
(h) the Company or any of its Restricted Subsidiaries
shall institute proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it, or shall file a
petition or answer or consent seeking reorganization under any bankruptcy or
similar law or similar statute, or shall consent to the filing of any such
petition, or shall consent to the appointment of a Custodian, receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of it or any of its
assets or property, or shall make a general assignment for the benefit of
creditors; or take any corporate action in furtherance of or to facilitate,
conditionally or otherwise, any of the foregoing;
(i) any Subsidiary Guaranty relating to the Notes ceases
to be in full force and effect (other than in accordance with the terms of such
Subsidiary Guaranty), or any Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guaranty relating to the Notes; or
(j) the security interest under the Collateral Documents
shall, at any time, cease to be in full force and effect for any reason other
than the satisfaction in full of all Obligations under this Indenture and
discharge of this Indenture or any security interest created hereunder or under
the Collateral Documents shall be declared invalid or unenforceable or the
Company or any Subsidiary Guarantor shall assert, in any pleading in any court
of competent jurisdiction, that any such security interest is invalid or
unenforceable.
Notwithstanding the 30-day period and notice requirement
contained in Section 6.1(d) above, with respect to a default under Section 4.21,
the 30-day period referred to in Section 6.1(d) shall be deemed to have begun as
of the date the Change of Control notice is required to be sent in the event
that the Company has not complied with the provisions of Section 4.21 and the
Trustee or Holders of at least 25% in principal amount of the outstanding Notes
thereafter give the Notice of Default referred to in Section 6.1(d) to the
Company and, if applicable, the Trustee; provided, however, that if the breach
or default is a result of a default in the payment when due of the Repurchase
Price on the Repurchase Date, such Event of Default shall be deemed, for
purposes of this Section 6.1, to arise no later than on the last Repurchase
Date.
SECTION 6.2. ACCELERATION OF MATURITY DATE; RESCISSION
AND ANNULMENT.
(a) If an Event of Default (other than an Event of
Default specified in Section 6.1(g) or 6.1(h) relating to the Company) occurs
and is continuing, then, and in
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every such case, unless the principal of all of the Notes shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of then outstanding Notes, by a notice in writing
to the Company (and to the Trustee if given by such Holders) (an "Acceleration
Notice"), may declare all of the principal of the Notes (or the Repurchase Price
if the Event of Default includes failure to pay the Repurchase Price, determined
as set forth below), including in each case accrued and unpaid interest thereon
and all other Obligations thereunder, to be due and payable immediately. If an
Event of Default specified in Section 6.1(g) or 6.1(h) relating to the Company
occurs, all principal, accrued and unpaid interest thereon and all other
Obligations thereunder will become immediately due and payable on all
outstanding Notes without any other act, declaration or notice on the part of
Trustee or the Holders.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, the Holders
of no less than a majority in aggregate principal amount of then outstanding
Notes, by written notice to the Trustee, may rescind and annul, on behalf of all
Holders, any such declaration of acceleration if:
(1) Company has paid or deposited with the Trustee Cash sufficient
to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, applicable to)
any Notes which would then be due otherwise than by
such declaration of acceleration, and interest
thereon at the rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate
borne by the Notes, and
(D) all sums paid or advanced by the Trustee hereunder
and the compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
(2) all Events of Default, other than the non-payment of the
principal of, and premium and interest on Notes that have
become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.12, including,
if applicable, any Event of Default relating to the covenants
contained in Section 4.21.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Note affected thereby, unless all such affected
Holders agree, in writing, to waive such Event of Default or other event. No
such waiver shall cure or waive any subsequent Default or Event of Default or
impair any right consequent thereon.
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(b) In the case of any Event of Default occurring by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to the optional redemption provisions of this Indenture, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes. If an Event of
Default occurs prior to [ ], 2007, by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding the prohibition on redemption of the Notes prior to such date, then,
premium shall be paid by the Company upon acceleration of the Notes, and in an
amount, for each of the years beginning on [ ] of the years set forth below:
YEAR PERCENTAGE
---- ----------
2003................................................ [ ]%
2004................................................ [ ]%
2005................................................ [ ]%
2006................................................ [ ]%
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if an Event of Default in payment
of principal, premium or interest specified in clause (a) or (b) of Section 6.1
occurs and is continuing, the Company shall, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Notes, the whole amount then due and
payable on such Notes for principal, premium, interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate borne
by the Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the reasonable costs and expenses of collection, including
compensation to, and reasonable expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust in favor
of the Holders, may institute a judicial proceeding for the collection of the
sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon the
Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or
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agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest shall be entitled and
empowered, by intervention in such proceeding or otherwise to take any and all
actions under the TIA, including
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect
of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 6.6;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder 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 Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment, or composition affecting
the Notes or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted
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by the Trustee shall be brought in its own name as trustee of an express trust
in favor of the Holders, and any recovery of judgment shall, after provision for
the payment of compensation to, and expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Notes in respect of which such judgment has been recovered.
SECTION 6.6. PRIORITIES.
Any money collected by the Trustee pursuant to this Article VI
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium or interest upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant
to Section 7.7;
SECOND: To the holders of Senior Indebtedness of the Company;
THIRD: To the Holders in payment of the amounts then due and
unpaid for principal of, premium, interest on the Notes in respect or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes for
principal, premium and interest, respectively; and
FOURTH: The remainder, if any, shall be repaid to the Company.
SECTION 6.7. LIMITATION ON SUITS.
No Holder of any Note shall have any right to institute or
order or direct the Trustee to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(A) such Holder has previously given written
notice to the Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in
principal amount of then outstanding Notes shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(C) such Holder or Holders have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred or
reasonably probable to be incurred in compliance with such request;
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(D) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute any
such proceeding; and
(E) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of then outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision of this Indenture but
subject to the provisions of Section 6.6, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of, and premium, interest on such Note when due (including, in the case of
redemption, the Redemption Price on the applicable Redemption Date, and in the
case of the Repurchase Price, on the applicable Repurchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 6.9. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.10. DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any
Note to exercise any right or remedy arising upon any Event of Default shall
impair the exercise of any such right or remedy or constitute a waiver of any
such Event of Default. Every right and remedy given by this Article VI or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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SECTION 6.11. CONTROL BY HOLDERS.
The Holder or Holders of no less than a majority in aggregate
principal amount of then outstanding Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred upon the Trustee,
provided, that
(1) the Trustee may refuse to follow any direction that conflicts
with any rule of law or with this Indenture,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part
in such direction or that may involve the Trustee in personal
liability, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
In the event the Trustee takes any action or follows any
direction pursuant to this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its reasonable direction against any loss,
expense or liability caused by taking such action or following such direction.
SECTION 6.12. WAIVER OF PAST DEFAULT.
The Holder or Holders of not less than a majority in aggregate
principal amount of then outstanding Notes may, on behalf of all Holders, prior
to the declaration of acceleration of the maturity of the Notes, waive any past
default hereunder and its consequences, except a default
(A) in the payment of the principal of, premium, or
interest on any Note not yet cured, or
(B) in respect of a covenant or provision hereof which,
under Article IX, cannot be modified or amended
without the consent of the Holder of each outstanding
Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair the exercise of any right arising
therefrom.
In the event of a waiver, the Company shall deliver to the
Trustee an Officer's Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents.
When a Default or Event of Default is waived, it is cured and ceases.
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SECTION 6.13. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, 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, suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 6.13 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in aggregate principal amount of then
outstanding Notes, or to any suit instituted by any Holder for enforcement of
the payment of principal of, premium or interest on any Note on or after the
respective Stated Maturity of such Note (including, in the case of redemption,
on or after the Redemption Date).
SECTION 6.14. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII
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 7.1. DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default actually known to
the Trustee 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 their exercise as a prudent Person would exercise or use under
the circumstances in the conduct of such Person's 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
others, and no
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covenants or obligations shall be implied in or read into this
Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to 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 7.1.
(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 Section 6.11 and the Trustee shall be entitled from time to
time to request and receive such direction.
(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 to take or omit
to take any action under this Indenture or at the request, order or direction of
the Holders or in the exercise of any of its rights or powers unless it receives
reasonable indemnity satisfactory to it against any loss, liability or expense.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of
this Section 7.1.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree in writing 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 7.2. RIGHTS OF TRUSTEE.
Subject to Section 7.1:
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(a) The Trustee may rely on 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 any such 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 14.4 and 14.5. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or advice of counsel.
(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 it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
(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.
(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 therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article IV hereof. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i) any Event of Default occurring pursuant to Sections 6.1(a) or 6.1(b),
or (ii) any Default or Event of Default of which the Trustee shall have received
written notification or obtained actual knowledge.
(i) Subject to Section 9.2 hereof, the Trustee may (but
shall not be obligated to), without the consent of the Holders, give any
consent, waiver or approval required by the terms hereof. The Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any consent, waiver, approval, amendment or modification shall be a
material adverse effect on the interest or rights of any Holder.
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SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any of
its Subsidiaries, or their respective Affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights;
however, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Collateral Documents or the Notes and it shall
not be accountable for the Company's use of the proceeds from the Notes, and it
shall not be responsible for any statement in the Notes, other than the
Trustee's certificate of authentication, or the use or application of any funds
received by a Paying Agent other than the Trustee.
SECTION 7.5. NOTICE OF DEFAULT.
Except in the case of a Default or an Event of Default in
payment of principal, premium or interest to any Note (including the payment of
the Repurchase Price on the Repurchase Date and the payment of the Redemption
Price on the Redemption Date), the Trustee may withhold the notice if and so
long as a Trust Officer in good faith determines that withholding the notice is
in the interest of the Noteholders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each July 15 beginning with the July 15
following the date of this Indenture, the Trustee shall, if required by TIA
Section 313(a), mail to each Noteholder a brief report dated as of such July 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if
the Notes become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to
Noteholders shall be mailed to the Company and filed with the Commission, if
required by law, and each stock exchange, if any, on which the Notes are listed.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Company agrees to pay to the Trustee from time to time
such compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust). The Company shall also reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by it. Such expenses shall include the
77
reasonable compensation, disbursements and expenses of the Trustee's agents,
accountants, experts and counsel.
The Trustee shall not be under any obligation to institute any
suit, or take any remedial action under this Indenture, or to enter any
appearance or in any way defend any suit in which it may be a defendant, or to
take any steps in the execution of the trusts created hereby or thereby or in
the enforcement of any rights and powers under this Indenture, until it shall be
indemnified to its reasonable satisfaction against any and all reasonable
expenses, disbursements, advances and other liabilities incurred or made by the
Trustee in accordance with any provisions of this Indenture, including
compensation for services, costs, expenses, outlays, counsel fees and other
disbursements, and against all liability not due to its negligence or willful
misconduct.
The Company agrees to indemnify the Trustee (in its capacity
as Trustee) and each of its officers, directors, attorneys-in-fact and agents
for, and hold it and each of them harmless against, any claim, demand, expense
(including but not limited to reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel), loss or liability incurred by it
without negligence, bad faith or willful misconduct on its part, arising out of
or in connection with the administration of this trust and its rights or duties
hereunder including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity; however, unless the position of the Company is prejudiced by such
failure, the failure of the Trustee to promptly notify the Company shall not
limit its right to indemnification. The Company shall defend each such claim.
The Trustee may retain separate counsel if the Trustee shall have been
reasonably advised by counsel that there may be one or more legal defenses
available to it that are different from or additional to those available to the
Company and in the reasonable judgment of such counsel it is advisable for the
Trustee to engage separate counsel, and the Company shall reimburse the Trustee
for the reasonable fees and expenses of such counsel. 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
7.7, the Company and the Holders agree that the Trustee shall have a lien prior
to the Notes on all assets held or collected by the Trustee, in its capacity as
Trustee, except assets held in trust to pay principal of, premium or interest on
particular Notes pursuant to Article III.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article VIII of this
Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holder or Holders of a majority in principal amount of then outstanding
Notes may remove the Trustee by so notifying the Company and the Trustee in
writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.8.
If the instrument of acceptance by a successor Trustee
required by this Section 7.8 shall not have been delivered to the Trustee within
30 days after the giving of such notice of removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. At any time within one year after a successor Trustee
appointed by the Company takes office, the Holder or Holders of a majority in
principal amount of then outstanding Notes may, with the Company's consent,
appoint a successor Trustee to replace such successor Trustee as so 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
and provided that all sums owing to the retiring Trustee provided for in Section
7.7 have been paid, the retiring Trustee shall transfer all property held by it
as trustee to the successor Trustee, subject to the lien provided in Section
7.7, 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 Holder.
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If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the Company or any Holder or
Holders of at least 10% in principal amount of then outstanding Notes 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 Holder
or Holders of at least 10% in principal amount of then outstanding Notes may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Any successor Trustee shall comply with
TIA Section 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee, provided such
corporation shall be otherwise eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
delivery the Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1), (2) and (5). The Trustee shall have a combined capital and
surplus of at least $50,000,000 (or being a member or subsidiary of a bank
holding system with aggregate combined capital and surplus of at least
$50,000,000) as set forth in its most recent published annual report of
condition if such corporation or system publishes reports of condition at least
annually, pursuant to law or to the requirements of such supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation or system shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. 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.
The provisions of TIA Section 310 shall apply to the Company, as obligor of the
Notes.
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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.
SECTION 7.12. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article VII and in Article X hereof shall in each case
(unless the context shall otherwise require) be construed as extending to and
including such Paying Agent within its meaning as fully and for all intents and
purposes as if such Paying Agent were named in this Article VII and in Article X
hereof in place of the Trustee.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article VIII.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section 8.4
hereof, and as more fully set forth in such Section, payments in respect of the
principal, premium and interest on such Notes when such payments are due, (b)
the Company's obligations with respect to such Notes under
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Article II and Section 4.2 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article VIII. Subject to compliance with this Article
VIII, the Company may exercise its option under this Section 8.2 notwithstanding
the prior exercise of its option under Section 8.3 hereof.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be released from
its obligations under the covenants contained in Sections 4.4, 4.5, 4.11, 4.12,
4.13, 4.14, 4.15, 4.17, 4.18, 4.19, 4.20 and 4.21 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance") and the Notes shall thereafter be
deemed not "outstanding" for the purposes 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 (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, 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 6.1 hereof, but, except as specified above,
the remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.1 hereof of the option
applicable to this Section 8.3 hereof, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, Sections 6.1(c) through 6.1(g)
hereof shall not constitute Events of Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United States
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants, to pay the principal, premium and
interest on the outstanding Notes on the Stated Maturity thereof or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
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(b) in the case of an election under Section 8.2 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized tax counsel reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) 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 of Counsel shall
confirm that, the Holders of the outstanding Notes 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;
(c) in the case of an election under Section 8.3 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel from
nationally recognized tax counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes 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;
(d) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in the period
ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which the
Company or any of its Restricted Subsidiaries is a party or by which the Company
or any of its Restricted Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
opinion of counsel to the effect that on the 91st day or on the day after the
last day of the applicable preference period under Bankruptcy Law following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
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(i) the deposit shall not result in the Company, the
Trustee or the trust becoming or being deemed to be an "investment company"
under the Investment Company Act of 1940, as amended.
SECTION 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.4 hereof 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 Notes.
Anything in this Article VII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
SECTION 8.6. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less
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than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Note; shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may be; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
SECTION 8.8. DISCHARGE OF LIABILITY ON SECURITIES;
DEFEASANCE.
When (a)(i) the Company delivers to the Trustee all
outstanding Notes for cancellation or (ii) all outstanding Notes have become due
and payable, whether at maturity or on a specified redemption date as a result
of the mailing of a notice of redemption pursuant to Article III hereof, (b) the
Company irrevocably deposits with the Trustee money sufficient to pay at
maturity or upon redemption all outstanding Notes, including interest and
premium thereon to maturity or such redemption date, and if in either case the
Company pays all other sums payable hereunder by the Company, and (c) if the
Notes have been called for redemption and the redemption date has not occurred,
the Company delivers to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such actions and will be subject to federal income tax
on the same amounts, in the same manner and at the same time as would have been
the case if such actions had not occurred, then this Indenture shall cease to be
of further effect except for (i) the provisions set forth in Article II, Section
4.7, 7.7 and 8.6 hereof and (ii) if the Notes have been called for redemption
and the redemption date has not occurred, the Company's obligation to pay the
redemption price on such redemption date. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officer's Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this
Indenture, the Collateral Documents or the Notes without the consent of any
Holder of Notes:
(i) to cure any ambiguity, defect or
inconsistency;
(ii) to provide for uncertificated Notes in
addition to or in place of certificated Notes;
(iii) to provide for the assumption of the
Company's Obligations to Holders in the case of a merger or
consolidation;
(iv) to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does
not adversely affect the legal rights hereunder of any Holder of the
Notes; or
(v) to comply with requirements of the
Commission in order to effect or maintain the qualification of this
Indenture under the TIA;
(vi) to enter into additional or supplemental
Collateral Documents.
Upon the request of the Company, accompanied by a resolution
of the Board of Directors of the Company, authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof required or requested by the Trustee,
the Trustee shall join with the Company in the execution of any supplemental
indenture or amendment authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture or amendment which affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.2. WITH CONSENT OF HOLDERS.
Except as otherwise provided herein, the Company and the
Trustee may amend or supplement this Indenture, the Collateral Documents or the
Notes with the written consent of the Holders of at least a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes).
Upon the request of the Company, accompanied by a resolution
of the Board of Directors of the Company authorizing the execution of any such
supplemental
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indenture or amendment, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 9.6
hereof, the Trustee shall join with the Company in the execution of such
supplemental indenture or amendment unless such supplemental indenture or
amendment affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture or amendment under this Section
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture, amendment
or waiver. Subject to Sections 6.8, 6.12, 7.2 and 7.7 hereof, the Holders of a
majority in principal amount of the Notes then outstanding may waive compliance
in a particular instance by the Company with any provision of this Indenture or
the Notes. However, without the consent of each Holder of Notes affected, an
amendment or waiver under this Section may not (with respect to any Notes held
by a non-consenting Holder of Notes):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity
of any Note or alter the optional or mandatory redemption provisions (other than
provisions relating to the covenants described in Section 4.20 or 4.21) or
reduce the prices at which the Company shall offer to purchase such Notes
pursuant to Sections 4.20 or 4.21 hereof;
(c) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or interest on, or redemption payment with respect to, any Note
(other than a Default in the payment of an amount due as a result of an
acceleration if the Holders of Notes rescind such acceleration pursuant to
Section 6.2);
(e) make any Note payable in money other than that stated
in the Note;
(f) make any change in the provisions of this Indenture
relating to waiver of past defaults or to the rights of Holders to receive
payments of principal, premiums or interest on the Notes or in this sentence of
this Section 9.2;
(g) waive a redemption payment with respect to any Note;
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(h) release all or substantially all of the Collateral
from the Lien of this Indenture or the Collateral Documents (except in
accordance with the provisions thereof)
(i) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.3. COMPLIANCE WITH TIA.
If at the time of an amendment to this Indenture or the Notes,
this Indenture shall be qualified under the TIA, every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Note or portion of
such Note by notice to the Trustee or the Company received before the date
specified in any solicitation or waiver. Subject to Section 9.2 hereof, a
supplemental indenture, amendment or waiver becomes effective in accordance with
its terms and thereafter binds every Holder of Notes.
The Company may fix a record date for determining which
Holders must consent to such supplemental indenture, amendment or waiver or
action permitted by Section 9.2. If the Company fixes a record date, the record
date shall be fixed at the later of (i) 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.5, or (ii) such other
date as the Company shall designate.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about a
supplemental indenture, amendment or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment or waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article IX if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but
88
need not, sign it. In signing or refusing to sign such amendment or supplemental
indenture, the Trustee shall be entitled to receive, if requested, an indemnity
reasonably satisfactory to it and to receive and, subject to Section 7.1, shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith
or therewith, and that it will be valid and binding upon the Company in
accordance with its terms. The Company may not sign an amendment or supplemental
indenture until the Board of Directors of the Company approves it.
ARTICLE X
GUARANTEE OF NOTES
SECTION 10.1. SUBSIDIARY GUARANTEE.
Subject to Section 10.6 hereof, each of the Subsidiary
Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes, the Collateral Documents and the Obligations of
the Company hereunder and thereunder, that: (a) the principal of and premium and
interest on the Notes will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, (to the extent
permitted by law) interest on the Notes, and all other payment Obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full and performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other Obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any amount
so guaranteed or any performance so guaranteed for whatever reason the
Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection. An Event of Default under this
Indenture or the Notes shall constitute an event of default under the Subsidiary
Guarantees, and shall entitle the Holders to accelerate, the Obligations of the
Subsidiary Guarantors hereunder in the same manner and to the same extent as the
Obligations of the Company. The Subsidiary Guarantors hereby agree that their
Obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Subsidiary
Guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company,
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any right to require a proceding first against the Company, protest, notice and
all demands whatsoever and covenants that this Subsidiary Guarantee will not be
discharged except by complete performance of the Obligations contained in the
Notes and this Indenture. If any Holder or the Trustee is required by any court
or otherwise to return to the Company, the Subsidiary Guarantors, or any Note
Custodian, trustee, liquidator or other similar official acting in relation to
either the Company or the Subsidiary Guarantors, any amount paid by the Company
or any Subsidiary Guarantor to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled
to, and hereby waives, any right of subrogation in relation to the Holders in
respect of any Obligations guaranteed hereby. Each Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (a) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article VI hereof for the
purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed thereby, and (b) in the event of any declaration of acceleration of
such Obligations as provided in Article VI hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by the Subsidiary
Guarantor for the purpose of its Subsidiary Guarantee. The Subsidiary Guarantors
shall have the right to seek contribution from any non-paying Subsidiary
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Subsidiary Guarantees.
SECTION 10.2. EXECUTION AND DELIVERY OF SUBSIDIARY
GUARANTEE.
To evidence its Subsidiary Guarantee set forth in Section 10.1
hereof, each Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form of Exhibit B to the Indenture
shall be endorsed by manual or facsimile signature by an Officer of such
Subsidiary Guarantor on each Note authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of such Subsidiary Guarantor, by
manual or facsimile signature, by an Officer of such Subsidiary Guarantor.
After the date of this Indenture, if the Company or any or its
Restricted Subsidiaries shall acquire or create a Domestic Restricted
Subsidiary, or redesignate an Unrestricted Subsidiary to be a Restricted
Subsidiary, then the Company shall cause such Restricted Subsidiary to execute a
Subsidiary Guarantee substantially in the form of Exhibit B. Such Subsidiary
Guarantee shall be accompanied by an appropriate supplemental Indenture, along
with such other opinions, certificates and documents required under this
Indenture; provided, however, that any Subsidiary that has been properly
designated as an Unrestricted Subsidiary in accordance with this Indenture need
not execute a Subsidiary Guarantee for so long as it continues to constitute an
Unrestricted Subsidiary.
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Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Senior Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
SECTION 10.3. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC.,
ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 hereof,
nothing contained in this Indenture shall prohibit a merger between a Subsidiary
Guarantor and another Subsidiary Guarantor or a merger between a Subsidiary
Guarantor and the Company.
(b) No Subsidiary Guarantor shall consolidate or merge
with or into (whether or not such Subsidiary Guarantor is the surviving Person),
or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions to another corporation, Person or entity whether or not affiliated
with such Subsidiary Guarantor unless, other than with respect to a merger
between a Subsidiary Guarantor and another Subsidiary Guarantor or a merger
between a Subsidiary Guarantor and the Company, (i) the Person formed by or
surviving any such consolidation or merger (if other than such Subsidiary
Guarantor) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made, is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) subject to the provisions of Section 10.4 hereof, the Person
formed by or surviving any such consolidation or merger (if other than such
Subsidiary Guarantor) or the Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made, assumes all the
obligations of such Subsidiary Guarantor under the Notes and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately before or immediately after giving effect to such
transaction, no Default or Event of Default exists; (iv) the Company would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio test set forth in the first paragraph of Section 4.11 hereof.
(c) In the case of any such consolidation, merger, sale
or conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor Person shall succeed to and be
91
substituted for the Subsidiary Guarantor with the same effect as if it had been
named herein as a Subsidiary Guarantor;
provided that, solely for purposes of computing Pro Forma
EBITDA and the Leverage Ratio for purposes of Section 4.11 hereof, the Pro Forma
EBITDA of any Person other than the Company and its Restricted Subsidiaries
shall only be included for periods subsequent to the effective time of such
merger, consolidation, combination or transfer of assets. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All of the
Subsidiary Guarantees so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Subsidiary Guarantees had been issued at the date of the execution
hereof.
SECTION 10.4. RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition of all of the
assets of any Subsidiary Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the capital stock of any
Subsidiary Guarantor, then such Subsidiary Guarantor (in the event of a sale or
other disposition, by way of such a merger, consolidation or otherwise, of all
of the capital stock of such Subsidiary Guarantor) or the corporation acquiring
the property (in the event of a sale or other disposition of all of the assets
of such Subsidiary Guarantor) shall be released and relieved of any obligations
under its Subsidiary Guarantee; provided that (i) in the event of an Asset Sale,
the Net Proceeds from such sale or other dispositions are treated in accordance
with the provisions of Section 4.20 hereof and (ii) the Company is in compliance
with all other provisions of this Indenture applicable to such disposition. Upon
delivery by the Company to the Trustee of an Officers' Certificate to the effect
of the foregoing, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Subsidiary Guarantor from its Obligation
under its Subsidiary Guarantee. Any Subsidiary Guarantor not released from its
Obligations under its Subsidiary Guarantee shall remain liable for the full
amount of principal of and premium and interest on the Notes and for the other
Obligations of such Subsidiary Guarantor under this Indenture as provided in
this Article X.
SECTION 10.5. RELEASES FOLLOWING DESIGNATION AS AN
UNRESTRICTED SUBSIDIARY.
In the event that the Company designates a Subsidiary
Guarantor to be an Unrestricted Subsidiary, then such Subsidiary Guarantor shall
be released and relieved of any obligations under its Subsidiary Guarantee;
provided that such designation is conducted in accordance with this Indenture.
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SECTION 10.6. LIMITATION ON SUBSIDIARY GUARANTOR
LIABILITY.
For purposes hereof, each Subsidiary Guarantor's liability
shall be limited to the lesser of (a) the aggregate amount of the Obligations of
the Company under the Notes and this Indenture and (b) the amount, if any, which
would not have (i) rendered such Subsidiary Guarantor insolvent (as such term is
defined in the Bankruptcy Law) or (ii) left such Subsidiary Guarantor with
unreasonably small capital at the time its Subsidiary Guarantee of the Notes was
entered into; provided that, it will be a presumption in any lawsuit or other
proceeding in which a Subsidiary Guarantor is a party that the amount guaranteed
pursuant to the Subsidiary Guarantee is the amount set forth in clause (a) above
unless any creditor, or representative of creditors of such Subsidiary
Guarantor, or debtor in possession or trustee in bankruptcy of the Subsidiary
Guarantor, otherwise proves in such a lawsuit that the aggregate liability of
the Subsidiary Guarantor is the amount set forth in clause (b) above. In making
any determination as to solvency or sufficiency of capital of a Subsidiary
Guarantor in accordance with the previous sentence, the right of such Subsidiary
Guarantor to contribution from other Subsidiary Guarantors, and any other rights
such Subsidiary Guarantor may have, contractual or otherwise, shall be taken
into account.
ARTICLE XI
COLLATERAL AND COLLATERAL DOCUMENTS
SECTION 11.1. COLLATERAL AND COLLATERAL DOCUMENTS.
(a) In order to secure the due and punctual payment of
the Notes, the Company and the Subsidiary Guarantors have entered into the
Collateral Documents to create the Note Liens on the Collateral in accordance
with the terms thereof. Pursuant to the provisions of the Collateral Documents
and this Indenture, the rights and remedies of the Trustee and the Holders of
the Notes in the Collateral shall be subordinate and subject to the rights and
remedies of the holders of the Priority Liens in accordance with the terms of
the Collateral Documents. In the event of a conflict between the terms of this
Indenture and the Collateral Documents, the Collateral Documents shall control.
(b) Each Holder of a Note, by accepting such Note, agrees
to all of the terms and provisions of the Collateral Documents.
(c) Each of the Company and the Subsidiary Guarantors
shall not, and shall not cause or permit any of its Domestic Restricted
Subsidiaries to, xxxxx x Xxxx on any of its Collateral to the Collateral Agent
under the Collateral Documents for the benefit of the Lenders under the Credit
Agreement unless a Note Lien is created in favor of the Collateral Agent for the
benefit of the Trustee (on behalf of the Trustee and the Holders of the Notes)
with respect to such property or assets.
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SECTION 11.2. APPLICATION OF PROCEEDS OF COLLATERAL
Upon any realization upon the Collateral, the proceeds thereof
shall be applied in accordance with the terms of the Collateral Documents and
the terms hereof.
SECTION 11.3. POSSESSION, USE AND RELEASE OF COLLATERAL
(a) Subject to the terms of the Collateral Documents, the
Company and the Subsidiary Guarantors will have the right to remain in
possession of the Collateral securing the Notes and any Subsidiary Guarantees
(other than any Collateral deposited with the Collateral Agent in accordance
with the provisions of the Collateral Documents and other than as set forth in
the Collateral Documents), to freely operate the Collateral and to collect,
invest and dispose of any income thereon.
(b) Each Holder of a Note, by accepting such Note,
acknowledges that (i) the Collateral Documents shall provide that so long as any
Priority Lien Obligations are outstanding, the holders thereof shall have the
exclusive right and authority to determine the release, sale, or other
disposition with respect to the Collateral and to change, waive or vary the
Collateral Documents, subject in the case of changes, waivers, or variances, to
the conditions specified in the Collateral Documents and (ii) the holders of the
Priority Lien Obligations may (x) direct the Collateral Agent to take actions
with respect to the Collateral (including the release of the Collateral and the
manner of realization) without the consent of the Holders or the Trustee and (y)
agree to modify the Collateral Documents, without the consent of the Holders or
the Trustee, to secure additional Indebtedness and additional secured creditors
so long as such modifications do not expressly violate the provisions of the
Credit Agreement or this Indenture. Subject to the terms of the Collateral
Documents, if at any time or from time to time Collateral which also secures the
Priority Lien Obligations is released or otherwise disposed of pursuant to the
Collateral Documents, such Collateral securing the Notes and any Subsidiary
Guarantees shall be automatically released or disposed of; provided, however,
that if an Event of Default under this Indenture exists as of the date on which
the Priority Lien Obligations are repaid in full, the Collateral securing the
Notes and the Subsidiary Guarantees shall not be released until such event of
Default and all other Events of Default shall have been cured or otherwise
waived except to the extent such Collateral was disposed of in order to repay
the Priority Lien Obligations.
(c) At such time as (i) the Priority Lien Obligations
have been paid in full in Cash in accordance with the terms thereof, and all
commitments and letters of credit thereunder have been terminated, or (ii) the
holders of Priority Lien Obligations have released their Priority Liens on all
or any portion of the Collateral, the Note Liens on the Collateral shall also be
automatically released to the same extent; provided, however, that (x) in the
case of clause (i) of this sentence, if an Event of Default under this Indenture
exists as of the date on which the Priority Lien Obligations are repaid in full
or terminated as described in clause (i) the Note Liens on the Collateral shall
not be released except to the extent the Collateral or any portion thereof was
disposed of in order to repay Priority Lien Obligations secured by the
Collateral, and thereafter, the
94
Trustee (acting at the direction of the Holders of a majority of outstanding
principal amount of Notes) shall have the right to direct the Collateral Agent
to foreclose upon the Collateral (but in such event, the Note Liens shall be
released when such Event of Default and all other Events of Default under this
Indenture cease to exist) or (y) in the case of clause (ii) of this sentence, if
the Priority Lien Obligations (or any portion thereof) are thereafter secured by
assets that would constitute Collateral, the Notes and any Subsidiary Guarantees
shall then be secured by a Note Lien on such Collateral, to the same extent
provided pursuant to the Collateral Documents as then in effect immediately
prior to the release of the Liens on the Collateral. If the Company subsequently
enters into a new Credit Agreement or other Priority Lien Obligations which are
secured by assets of the Company, the Subsidiary Guarantors and/or their
Domestic Restricted Subsidiaries of the type constituting Collateral, then the
Notes and the Subsidiary Guarantees shall be secured at such time by a Note Lien
on the collateral securing such Priority Lien Obligations (to the extent such
assets are of the type which constitute Collateral) to the same extent (in all
material respects) and with the same (in all material respects) priorities,
consent rights and provisions regarding release of Collateral and other
provisions set forth in the Collateral Documents as then in effect immediately
prior to the release of the Liens on the Collateral.
(d) Notwithstanding the provisions set forth in this
Section 11.3, the Company and its Subsidiaries may, without any release or
consent by the Collateral Agent or the Trustee, perform a number of activities
in the ordinary course in respect of the Collateral to the extent permitted
pursuant to the Collateral Documents and this Indenture.
SECTION 11.4. OPINION OF COUNSEL
So long as the Collateral Documents have not been terminated
in accordance with the terms thereof, the Company shall deliver to the Trustee,
so long as such delivery is required by Section 314(b) of the TIA, on the Issue
Date and thereafter, at least annually, within 30 days of [ ] of each year
(commencing with [ ], 2004), an Opinion of Counsel either stating that in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, recording and refiling of the Indenture or any Collateral
Document as is necessary to maintain the Note Liens, and reciting the details of
such action, or stating that in the opinion of such counsel, no such action is
necessary to maintain such Note Liens.
SECTION 11.5. FURTHER ASSURANCES
Each of the Company and any Subsidiary Guarantor and each
Domestic Restricted Subsidiary shall, at its own expense, make, execute,
endorse, acknowledge, file and/or deliver to the Collateral Agent from time to
time such lists, descriptions and designations of its Collateral, warehouse
receipts, receipts in the nature of warehouse receipts, bills of lading,
documents of title, vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
95
steps relating to the Collateral and other property or rights covered by the
Note Liens, which the Collateral Agent under the Collateral Documents deems
reasonably appropriate or advisable to perfect, preserve or protect the security
interest of the Note Lien in the Collateral.
SECTION 11.6. TRUST INDENTURE ACT REQUIREMENTS
The release of any Collateral from the Note Lien of any of the
Collateral Documents or the release of, in whole or in part, the Note Liens
created by any of the Collateral Documents, will not be deemed to impair the
Note Lien in contravention of the provisions hereof if and to the extent the
Collateral or Note Liens are released pursuant to the applicable Collateral
Documents and the terms hereof. Each of the Holders of the Notes acknowledges
that a release of Collateral or Note Liens strictly in accordance with the terms
of the Collateral Documents and the terms hereof will not be deemed for any
purpose to be an impairment of the Collateral, the Collateral Documents or
otherwise contrary to the terms of this Indenture. So long as any Priority Lien
Obligations are outstanding, the Company and the Subsidiary Guarantors shall
comply with TIA Section 314(d) relating to the release of property or securities
from the Note Liens hereof but only to the extent required by the TIA.
SECTION 11.7. SUITS TO PROTECT THE COLLATERAL
Subject to the provisions of the Collateral Documents, the
Trustee shall have the authority to direct the Collateral Agent to institute and
to maintain such suits and proceedings as the Trustee may deem expedient to
prevent any impairment of the Collateral by any acts which may be unlawful or in
violation of any of the Collateral Documents or this Indenture, and such suits
and proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders of the Notes in the Collateral
(including 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 Note Liens or be prejudicial to
the interests of the Holders of the Notes).
SECTION 11.8. PURCHASER PROTECTED
In no event shall any purchaser in good faith or other
transferee of any property purported to be released hereunder or under the
Collateral Documents be bound to ascertain the authority of the Trustee to
direct the Collateral Agent 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 to be sold by the Collateral
Documents, be under obligation to ascertain or inquire into the authority of the
Company, any Subsidiary Guarantor or any Domestic Restricted Subsidiary, as
applicable, to make any such sale or other transfer.
96
SECTION 11.9. 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 XI
upon the Company, any Subsidiary Guarantor or any Domestic Restricted
Subsidiary, as applicable, 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, any Subsidiary Guarantor or any
Domestic Restricted Subsidiary, as applicable, or of any officer or officers
thereof required by the provisions of this Article XI.
SECTION 11.10. RELEASE UPON TERMINATION OF COMPANY'S
OBLIGATIONS
In the event that the Company delivers an Officers'
Certificate and Opinion of Counsel certifying that its obligations under this
Indenture have been satisfied and discharged by complying with the provisions of
Article VIII, the Trustee shall (i) instruct the Collateral Agent to execute and
deliver such releases, termination statements and other instruments (in
recordable form, where appropriate) as the Company, any Subsidiary Guarantor or
any Domestic Restricted Subsidiary, as applicable, may reasonably request to
evidence the termination of the Note Liens created by the Collateral Documents
and (ii) not be deemed to hold the Note Liens for its benefit and the benefit of
the Holders of the Notes.
ARTICLE XII
[RESERVED]
ARTICLE XIII
[RESERVED]
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the imposed duties,
whether or not this Indenture has been qualified under the TIA, shall control.
97
SECTION 14.2. NOTICES.
Any notices or other communications to the Company or the
Trustee 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,
addressed as follows:
if to the Company:
Neenah Foundry Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: [ ]
Telecopy: (920) [ ] - [ ]
if to the Trustee:
[ ]
[ ]
Attention: Corporate Trust Division
Telecopy: [ ]
with a copy to:
[ ]
[ ]
Attention: [ ]
Any party by notice to each other party may designate
additional or different addresses as shall be furnished in writing by such
party. Any notice or communication to any party 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 telecopied; and five
Business 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 Noteholder 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 Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
98
SECTION 14.3. COMMUNICATIONS BY HOLDERS WITH OTHER
HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and any other Person shall have
the protection of TIA Section 312(c).
SECTION 14.4. 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 reasonably
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 fully
complied with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of
such counsel, all such conditions precedent have been fully
complied with.
SECTION 14.5. STATEMENTS REQUIRED IN CERTIFICATE OR
OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been fully complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been fully complied
with; provided, however, that with respect to matters of fact
an Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or
99
representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters and information which is in the possession of the
Company, upon the certificate, statement or opinion of or representations by an
officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 14.6. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a
meeting of Noteholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
SECTION 14.7. BUSINESS DAY.
If a payment date is other than a Business Day at such place,
payment may be made at such place on the next succeeding Business Day, and no
interest shall accrue for the intervening period.
SECTION 14.8. GOVERNING LAW.
THIS INDENTURE AND THE NOTES 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.
SECTION 14.9. 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.
100
SECTION 14.10. NO RECOURSE AGAINST OTHERS.
No direct or indirect partner, employee, stockholder, director
or officer, as such, past, present or future of the Company or any successor
corporation, shall have any personal liability in respect of the obligations of
the Company under the Notes or this Indenture by reason of his, her or its
status as such partner, stockholder, employee, director or officer. Each
Noteholder by accepting a Note waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the Notes.
SECTION 14.11. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 14.12. DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of
this Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 14.13. SEVERABILITY.
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 14.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of
the Articles and the Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 14.15. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA and
shall pay all costs and expenses (including attorneys' fees for the Company and
the Trustee) incurred in connection therewith, including, but not limited to,
costs and expenses of qualification of this Indenture and the Notes and printing
this Indenture and the Notes. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
101
SECTION 14.16. REGISTRATION RIGHTS
Certain Holders of the Notes are entitled to certain
registration rights with respect to such Notes pursuant to, and subject to the
terms of, the Registration Rights Agreement.
102
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first above written.
NEENAH FOUNDRY COMPANY
By:
----------------------------------------
Name:
Title:
[NAME OF SUBSIDIARY GUARANTOR]
By:
----------------------------------------
Name:
Title:
[NAME OF SUBSIDIARY GUARANTOR]
By:
----------------------------------------
Name:
Title:
[NAME OF SUBSIDIARY GUARANTOR]
By:
----------------------------------------
Name:
Title:
[NAME OF SUBSIDIARY GUARANTOR]
By:
----------------------------------------
Name:
Title:
103
[NAME OF SUBSIDIARY GUARANTOR]
By:
----------------------------------------
Name:
Title:
[NAME OF TRUSTEE]
By:
----------------------------------------
Name:
Title:
104
EXHIBIT A
FORM OF NOTE
(FACE OF NOTE)
NEENAH FOUNDRY COMPANY
11% SENIOR SECURED NOTE
DUE 2010
No. CUSIP No. _____________
$[ ]
Neenah Foundry Company, a Wisconsin corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
Co., Inc., or registered assigns, the principal sum of one hundred million
dollars, on [ ], 2013.
Interest Payment Dates: [ ] and [ ], commencing [ ], 2003.
Interest Record Dates: [ ] and [ ].
Reference is made to the further provisions of this Note on
the reverse side, which will, for all purposes, have the same effect as if set
forth at this place.
A-1
IN WITNESS WHEREOF, the Company has caused this Instrument to
be duly executed under its corporate seal.
NEENAH FOUNDRY COMPANY
By: _________________________________
Name:
Title:
Attest: ____________________
Secretary
A-2
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned
Indenture.
[ ]
By _____________________________________
Authorized Signatory
Dated: [ ], 2003
A-3
(BACK OF NOTE)
NEENAH FOUNDRY COMPANY
11% SENIOR SECURED NOTE
DUE 2010
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. 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 SUCH
REGISTRATION OR 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, ASSIGN, TRANSFER, PLEDGE, ENCUMBER OR OTHERWISE DISPOSE OF SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH NEENAH FOUNDRY COMPANY (THE "COMPANY") OR
ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (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 UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) 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 TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE OF THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED 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 US $250,000, FOR INVESTMENT PURPOSES ONLY AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
OF THE SECURITIES IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
A-4
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE, ASSIGNMENT, TRANSFER,
PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION 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.]
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (III) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY UNLESS THIS NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 XXXXX
XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE 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.]
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THIS NOTE WAS ISSUED AS PART OF AN INVESTMENT UNIT. THIS NOTE WAS
ISSUED WITH "ORIGINAL ISSUE DISCOUNT" FOR U.S. FEDERAL INCOME TAX
PURPOSES. WITH RESPECT TO THIS INVESTMENT UNIT WITH A PRINCIPAL AMOUNT
OF $1,000, THE ISSUE PRICE IS [_____]. [____] OF SUCH ISSUE PRICE WAS
ALLOCATED TO THE NOTE PORTION. THE TOTAL AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS [___]. THE ISSUE DATE OF THIS SECURITY IS [__], 2003. THE
YIELD TO MATURITY OF THIS SECURITY ON THE ISSUE DATE IS [____%],
COMPOUNDED SEMIANNUALLY.
THE PROJECTED PAYMENTS OF THIS SECURITY WITH A PRINCIPAL AMOUNT OF
$1,000 CONSIST OF (A) A PAYMENT OF INTEREST EQUAL TO [_____] ON
[JANUARY 1, 2004], (B) PAYMENTS OF INTEREST EQUAL TO [_____] ON EACH
SUBSEQUENT SEMI-ANNUAL INTEREST PAYMENT DATE (INCLUDING THE MATURITY
DATE) AND (C) A PAYMENT OF A PROJECTED AMOUNT AT THE MATURITY DATE OF
THIS SECURITY (EXCLUDING THE STATED SEMI-ANNUAL INTEREST ON THIS
SECURITY PAYABLE ON SUCH DATE) EQUAL TO [_____].
1. Interest.
Neenah Foundry Company, a Wisconsin corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Note at the rate of 11% per annum. To the extent it is lawful, the Company
promises to pay interest on any interest payment due but unpaid at the same rate
of interest borne by the Notes.
The Company will pay interest semi-annually on [ ] and [ ] of
each year (each, an "Interest Payment Date"), commencing [ ], 2003. Interest on
the Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid on the Notes, from [ ], 2003. Interest will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
2. Method of Payment.
The Company shall pay interest in cash on the Notes (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.
Holders must surrender Notes to a Paying Agent to collect principal payments.
Any such interest not so punctually paid, and defaulted interest relating
thereto, may be paid to the Persons who are registered Holders at the close of
business on a Special Record Date for the payment of such defaulted interest, as
more fully provided in the Indenture referred to below. Except as provided
below, the Company shall pay principal and interest in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
payment of public and private debts ("U.S. Legal Tender"). The Notes will be
payable as to principal, premium and interest at the office or agency of the
Company
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maintained for such purpose within the Borough of Manhattan, The City and State
of New York, or at the option of the Company, payment of principal, premium and
interest may be made by check mailed to the Holders at their addresses set forth
in the registry of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of,
premium and interest on Global Notes.
3. Paying Agent and Registrar.
Initially, [ ] (the "Trustee") will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to the Holders. The Company or any of its Subsidiaries may,
subject to certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of
[ ], 2003 (the "Indenture"), between the Company, the Subsidiary Guarantors
party thereto and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act, as in effect on the date of the Indenture. The Notes
are subject to all such terms, and Holders of Notes are referred to the
Indenture and said Act for a statement of them. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are secured by
second-priority security interests in the Collateral limited in aggregate
principal amount to $123,400,000, and may be issued in one or more series.
5. Redemption.
The Notes may not be redeemed prior to [ ], 2007. On or
after [ ], 2007, the Notes may be redeemed in whole or from time to time in
part at any time, at the option of the Company, at the Redemption Prices
(expressed as a percentage of principal amount) set forth below with respect to
the indicated Redemption Date, in each case, plus any accrued but unpaid
interest to, but excluding, the Redemption Date.
If redeemed during
the 12-month period
beginning Redemption Price
---------------------------------------------------- -------------------
2007................................................ 105.500%
2008................................................ 104.125%
2009................................................ 102.750%
2010................................................ 100.000%
6. Notice of Redemption.
A-7
Notice of redemption will be sent by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the Redemption Date
to the Holder of each Note to be redeemed at such Holder's last address as then
shown upon the registry books of the Registrar. Notes may be redeemed in part in
multiples of $1,000 only.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent on such Redemption Date and
payment of the Notes called for redemption is not prohibited under the
Indenture, the Notes called for redemption will cease to bear interest and the
only right of the Holders of such Notes will be to receive payment of the
Redemption Price, plus any accrued and unpaid interest to, but excluding the
Redemption Date.
7. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Notes in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Notes selected for redemption.
8. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent(s) will pay the money
back to the Company at its written request. After that, all liability of the
Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented, and any existing Default or Event of Default or
compliance with any provision may be waived, with the written consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, or make any other change that does not
adversely affect the rights of any Holder of a Note.
A-8
11. Collateral and Security.
The due and punctual payment of the principal of, premium, if
any, and interest on the Notes when and as the same shall be due and payable,
and performance of all other obligations of the Company and the Subsidiary
Guarantors to the Holders of Notes or the Trustee under this Indenture, the
Notes and the Subsidiary Guarantees, according to the terms hereunder or
thereunder, shall be secured by a Note Lien on the Collateral, which shall be
subordinate and subject to the rights and remedies of the holders of the
Priority Liens in accordance with the terms of the Collateral Documents.
12. Change of Control.
In the event of a Change of Control of the Company, each
Holder of Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 or an integral multiple thereof) of such Holder's
Notes, at an offer price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon to the Change of Control
Payment Date.
13. Asset Sales.
In the event of certain Asset Sales, the Company may be
required to make an Asset Sale Offer to purchase the maximum principal amount of
Notes that may be purchased out of Excess Proceeds, at an offer price in cash
equal to 100% of the principal amount of the Notes, plus accrued and unpaid
interest thereon to the date of purchase.
14. Successors.
When a successor assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor will be released
from those obligations.
15. Restrictive Covenants.
The Indenture imposes certain limitations on, among other
things, the ability of the Company to consolidate or merge with or into, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, the ability of the Company or its
Restricted Subsidiaries to dispose of certain assets, to declare or pay
dividends or make certain other distributions and payments, to make certain
investments or purchase, redeem, or otherwise acquire or retire for value Equity
Interests, to incur additional Indebtedness or incur Liens and to enter into
certain transactions with Affiliates, all subject to certain limitations
described in the Indenture.
16. Defeasance.
The Indenture contains provisions that permit the Company to
defease the Notes (and satisfy generally its Obligations under the Indenture or
with respect to certain covenants contained therein) under certain circumstances
subject to the conditions specified therein.
A-9
17. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization), then either the Trustee or the Holders of 25% in aggregate
principal amount of Notes then outstanding may declare all the Notes to be due
and payable immediately; provided, however, that after such acceleration, but
before a judgment or decree based on acceleration, the Holders of a majority in
aggregate principal amount of outstanding Notes may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than non-payment of accelerated principal, have been cured or waived as
provided in the Indenture. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the Notes then
outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes 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.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer or employee, as such, past,
present or future, of the Company or any successor corporation shall have any
personal liability in respect of the obligations of the Company under the Notes
or the Indenture by reason of his, her or its status as such stockholder,
director, officer or employee. Each Holder of a Note by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
20. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Note 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).
A-10
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company will cause CUSIP numbers to
be printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Additional Rights of Holders of Notes.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to:
Neenah Foundry Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: [ ]
24. Governing Law.
This Note and the Indenture shall be governed by and construed
in accordance with the laws of the State of New York, as applied to contracts
made and performed entirely within the State of New York, without regard to
principles of conflicts of law.
25. Agreement to Terms.
Each Holder, by accepting a Note, agrees to be bound by all of
the terms and provisions of the Indenture, as the same may be amended from time
to time.
A-11
FORM OF ASSIGNMENT
I or we assign this Note to
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Note or other identifying number of
assignee ____________ and irrevocably appoint ______________________ agent to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Dated:______________________ Signed:______________________________________
________________________________________________________________________________
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:______________________________
NOTICE: Your Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
A-12
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.20 or Section 4.21 of the Indenture, check the
appropriate box:
Section 4.20 { } Section 4.21 { }
If you want to have only part of this Note purchased by the
Company pursuant to Section 4.20 or Section 4.21 of the Indenture, state the
amount (in integral multiples of $1,000):
$ ____________________
Date:______________________
Signature:__________________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: _______________________________
NOTICE: Your Signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
A-13
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchange of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of Amount of of this Global Note Signature of
decrease in increase in following such authorized officer
Principal Amount Principal Amount decrease (or of Trustee or Notes
Date of Exchange of this Global Note of this Global Note increase) Custodian
---------------- ------------------- ------------------- ------------------- -------------------
A-14
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Neenah Foundry Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: [ ]
[ ]
[ ]
Attention: Corporate Trust Department
Facsimile No.:
Re: 11% Senior Secured Notes due 2010
Reference is hereby made to the Indenture, dated as of [ ],
2003 (the "Indenture"), among Neenah Foundry Company, as issuer (the "Company"),
the Subsidiary Guarantors party thereto and [ ], as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
___________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of US$___________ in such Note[s] or interests (the
"Transfer"), to ___________________________ (the "Transferee"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1.[ ] Check if Transferee will take delivery of a
beneficial interest in the 144A Global Note or a Definitive Note Pursuant to
Rule 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Definitive Note is being transferred to a Person
that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Definitive Note 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 a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global
Note and/or the Definitive Note and in the Indenture and the Securities Act.
2.[ ] Check if Transferee will take delivery of a
beneficial interest in the Regulation S Global Note or a Definitive Note
pursuant to Regulation S. The Transfer is being
B-1
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(a) of Regulation S under the Securities
Act, (iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Distribution Compliance
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note, the Temporary Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
3.[ ] Check and complete if Transferee will take delivery
of a beneficial interest in the IAI Global Note or a Definitive Note pursuant to
any provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a)[ ] such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;
or
(b)[ ] such Transfer is being effected to the
Company or a Subsidiary thereof;
or
(c)[ ] such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d)[ ] such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor hereby further certifies that
it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted
B-2
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of
transfer of less than US $250,000, an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Definitive Notes and in the
Indenture and the Securities Act.
4.[ ] Check if Transferee will take delivery of a
beneficial interest in an Unrestricted Global Note or of an Unrestricted
Definitive Note.
(a)[ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b)[ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i)
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c)[ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION.
(i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than
Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
__________________________________________
[Insert Name of Transferor]
By:_______________________________________
Name:
Title:
Dated: ___________________________________
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the
following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _____), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE OF (a), (b) OR (c)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _____), or
(iii) [ ] IAI Global Note (CUSIP _________); or
(iv) [ ] Unrestricted Global Note (CUSIP_____); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Neenah Foundry Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: [ ]
[ ]
[ ]
Attention: Corporate Trust Department
Facsimile No.:
Re: 11% Senior Secured Notes due 2010
Reference is hereby made to the Indenture, dated as of [ ],
2003 (the "Indenture"), among Neenah Foundry Company, as issuer (the "Company"),
the Subsidiary Guarantors party thereto and [ ], as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
__________________________, (the "Owner") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of US$____________ in such Note[s] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial
Interests in a Restricted Global Note for Unrestricted Definitive Notes or
Beneficial Interests in an Unrestricted Global Note
(a)[ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Note and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(b)[ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner
C-1
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Note and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
(c)[ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d)[ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes for Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes.
(a)[ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b)[ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CIRCLE ONE] 144A Global Note, Regulation S Global Note, IAI Global Note
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer
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and (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Definitive Note and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
__________________________________________
[Insert Name of Transferor]
By:_______________________________________
Name:
Title:
Dated: __________________________________
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Neenah Foundry Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxxx 00000
Attention: [ ]
[ ]
[ ]
Attention: Corporate Trust Department
Facsimile No.:
Re: 11% Senior Secured Notes due 2010
Reference is hereby made to the Indenture, dated as of [ ],
2003 (the "Indenture"), among Neenah Foundry Company, as issuer (the "Company"),
the Subsidiary Guarantors party thereto and [ ], as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of US$____________
aggregate principal amount of:
(a)[ ] a beneficial interest in a Global Note, or
(b)[ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the
Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes
have not been registered under the Securities Act, and that the Notes and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein) 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 under the
Securities Act, (C) to an institutional "accredited investor" (as defined below)
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that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you and to the Company a signed letter substantially in
the form of this letter and, such transfer is in respect of a minimum principal
amount of Notes of US $250,000, (D) pursuant to offers and sales to non-U.S.
Persons that occur outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to any other available
exemption under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the
Notes or beneficial interest therein, we will be required to furnish to you and
the Company such certifications, legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and 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. We have had access to such financial and
other information and have been afforded the opportunity to ask such questions
of representatives of the Company and receive answers thereto, as we deem
necessary in connection with our decision to purchase the Notes.
5. We are acquiring the Notes or beneficial interest
therein purchased by us for our own account, or for one or more accounts (each
of which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion, for investment purposes only and are not
acquiring the Notes with a view to any distribution thereof in a transaction
that would violate the Securities Act of the securities laws of any state of the
United States or any other applicable jurisdiction.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. This letter shall be governed by,
and construed in accordance with, the laws of the State of New York.
__________________________________________
[Insert Name of Accredited Investor]
By:_______________________________________
Name:
Title:
Dated: __________________________
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EXHIBIT E
GUARANTEE
For value received, each of the undersigned hereby
unconditionally guarantees to the Holders of Notes the payments of principal of,
premium, if any, and interest on such Notes in the amounts and at the time when
due and interest on the overdue principal, premium, if any, and interest, if
any, of such Notes, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture or the Notes, to the Holders of
the Notes and the Trustee, all in accordance with and subject to the terms and
limitations of the Notes, Article X of the Indenture and this Guarantee. This
Guarantee will become effective in accordance with Article X of the Indenture
and its terms shall be evidenced therein. The validity and enforceability of any
Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
The obligations of the undersigned to the Holders of Notes and
to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article X of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all of the other provisions
of the Indenture to which this Guarantee relates. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary to appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
[NAME OF SUBSIDIARY GUARANTOR]
[NAME OF SUBSIDIARY GUARANTOR]
By:______________________________
Name:
Title:
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