Exhibit T3C.2
_______________________________________________________________________________
GOLDEN NORTHWEST ALUMINUM HOLDING COMPANY
as Issuer,
THE SUBSIDIARY GUARANTORS
(as defined in the Indenture)
as Guarantors,
and
WILMINGTON TRUST COMPANY
as Trustee
________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of ___________, 2005
__________________________
10% Subordinated Secured Notes due 2011
_______________________________________________________________________________
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of ____________, 2005 (the
"Supplemental Indenture"), is made and entered into by and among GOLDEN
NORTHWEST ALUMINUM HOLDING COMPANY, a Delaware corporation (the "Issuer"), the
undersigned Subsidiary Guarantors (the "Guarantors") and WILMINGTON TRUST
COMPANY, as Trustee, (the "Trustee"), under and pursuant to an Indenture dated
as of April 14, 2005, by and among the Issuer, the Guarantors and the Trustee
(the "Original Indenture"). All capitalized terms used in this Supplemental
Indenture that are defined in the Original Indenture, either directly or by
reference therein, have the respective meanings assigned to them therein, except
to the extent such terms are otherwise defined in this Supplemental Indenture or
the context clearly requires otherwise.
WHEREAS, Section 9.01(g) of the Original Indenture provides that without
the consent of any Holder of a Note the Issuer, the Guarantors and the Trustee
may amend or supplement the Original Indenture and the Notes to provide for the
issuance of Notes in payment of interest in lieu of interest deferral and to
make all changes resulting therefrom and Section 9.01(e) of the Original
Indenture provides that without the consent of any Holder of a Note, the Issuer,
Guarantors and Trustee may amend or supplement the Indenture to comply with the
requirements of the SEC in order to effect the qualification of the Indenture
under the TIA; and
WHEREAS, the Issuer desires to amend and supplement the Original Indenture
and the Notes by way of the adoption of the amendments set forth in Article I
(relating to the Original Indenture) and Article II (relating to the Notes),
respectively, of this Supplemental Indenture (the "Proposed Amendments"); and
WHEREAS, the Boards of Directors of the Issuer and the Guarantors each has
adopted resolutions authorizing and approving the Proposed Amendments, and the
Issuer, the Guarantors and the Trustee are executing and delivering this
Supplemental Indenture in order to provide for such amendments;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this
Supplemental Indenture hereby agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL INDENTURE
Section 1.01 of the Original Indenture--Amended Definitions. The following
definitions in Section 1.01 of the Original Indenture are hereby amended as
follows:
(a) The definition of "Deferred Interest" is hereby deleted in its
entirety.
(b) The following definitions are hereby inserted into Section 1.01
Indenture:
(i) "Additional Notes" means Notes issued in payment of interest.
(ii) "principal" when referring to principal payable on the Notes,
means the principal of the Notes, including any Additional Notes,
if any.
(c) The definition of "interest" is hereby deleted in its entirety and
replaced with the following:
"interest" when referring to interest
payable on the Notes, means the interest
borne by the Notes.
Section 1.02 Section 1.02 of the Original Indenture. Section 1.02 of
the Original Indenture is hereby amended by deleting the terms "Compounded
Interest" and "Interest Deferral" therefrom.
Section 1.03 Other Amendments to the Original Indenture.
(a) Section 2.01(b) of the Original Indenture is hereby deleted in its
entirety and replaced with the following:
"(b) Notes. The Notes shall be originally
issued as restricted and unrestricted Global
Notes. Thereafter, beneficial interests in the
Global Notes may be exchanged for Restricted
Definitive Notes and Unrestricted Definitive
Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached
hereto (including the Global Note Legend
thereon). Notes issued in definitive form shall
be substantially in the form of Exhibit A
attached hereto (but without the Global Note
Legend thereon and, in the case of Restricted
Definitive Notes, shall bear the Private
Placement Legend). Each Note shall represent
such of the outstanding Notes as shall be
specified therein and shall represent the
aggregate principal amount of outstanding Notes
from time to time as reflected in the records
of the Trustee and that the aggregate principal
amount of outstanding Notes represented thereby
may from time to time be reduced or increased,
as appropriate, to reflect exchanges,
transfers, redemptions and the issuance of
Additional Notes. Any increase or decrease in
the aggregate principal amount of outstanding
Notes represented thereby shall be made by the
Trustee in the records of the Trustee or the
Custodian, at the direction of the Trustee, or,
in the case of Additional Notes, in accordance
with a supplemental Authentication Order
delivered by the Company."
(b) The fourth paragraph of Section 2.02 of the Original Indenture is
hereby deleted in its entirety and replaced with the following:
"The Trustee shall, upon a written order
of the Company signed by an Officer (an
"Authentication Order"), authenticate Notes for
original issue up to the aggregate principal
amount stated in paragraph 4 of the Notes.
Thereafter, and from time to time after receipt
of a supplemental Authentication Order, the
Trustee and the Company shall notify the
Depositary of an increase or decrease in the
amount of the Global Note and record
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the amount of any increase in the aggregate
principal amount of the Global Note to reflect
the issuance of any Additional Notes. The
aggregate principal amount of Notes outstanding
at any time may not exceed the amount set forth
in paragraph 4 of the Notes except as provided
in Section 2.07 hereof."
(c) The first paragraph of Section 2.03 of the Original Indenture is
hereby deleted in its entirety and replaced with the following:
"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 and of their transfer and exchange as
well as the issuance of Additional Notes. The
Company may appoint the Registrar and one or
more additional paying agents. The term
"Paying Agent" includes any additional paying
agent. The Company may change any Paying Agent
or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of
the name and address of any Agent not a party
to this Indenture. If the Company fails to
appoint or maintain another entity as Registrar
or Paying Agent, the Trustee shall act as
such. Neither the Company nor any of its
Subsidiaries may act as Paying Agent or
Registrar."
(d) Sections 3.01 and 3.03(b) of the Original Indenture are hereby
amended by deleting the words "(including without limitation all amounts of
Deferred Interest and Compounded Interest due on the redemption date)"
therefrom.
(e) Section 3.05 of the Original Indenture is hereby amended by
deleting the words "(including any Deferred Interest and Compounded
Interest)" therefrom.
(f) Section 4.01 of the Original Indenture is hereby deleted in its
entirety and replaced with the following:
"Section 4.01 PAYMENT OF NOTES
The Company shall pay or cause to be paid
the principal of and interest on the Notes on
the dates and in the manner provided in the
Notes. Principal and interest shall be
considered paid on the date due if the Paying
Agent, if other than the Company or a
Subsidiary thereof, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by
the Company in immediately available funds and
designated for and sufficient to pay all
principal and interest then due; provided,
however, that with respect to payments of
interest due on any of the first 12 Interest
Payment Dates, the Company may elect, by
delivery of a supplemental Authentication Order
to the Trustee no later than thirty (30) days
prior to the relevant Interest Payment Date, to
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pay interest in Additional Notes in lieu of
cash.
If the Company elects to pay interest in
the form of Additional Notes, the Company shall
deliver to the Trustee and the Holders at least
thirty (30) days prior to the relevant
Interest Payment Date, notice, in the form of a
supplemental Authentication Order, stating (i)
that the Company has elected to pay interest in
the form of Additional Notes, (ii) and the
amount of interest for each $1,000 in aggregate
principal amount outstanding and the amount of
Additional Notes to be authenticated in lieu of
cash payments and (iii) the date on which all
such interest is due. No Additional Notes
shall be issued in denominations of less than
$1. Instead of issuing Additional Notes in
denominations of less than $1, any issuance of
Additional Notes shall reflect a rounding to
the nearest whole dollar (up or down) with half
dollars being rounded down. Notwithstanding
the foregoing, the Company shall not be
entitled to pay interest on the Notes in the
form of Additional Notes on or after the 12th
Interest Payment Date after the Issue Date.
The Company shall pay interest (including
post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal at the
rate equal to 2% per annum in excess of the
then applicable interest rate on the Notes to
the extent lawful; it shall pay interest
(including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any
applicable grace period) at the same rate to
the extent lawful."
ARTICLE II
AMENDMENTS TO SUBORDINATED SECURED NOTES
Section 2.01. (a) Paragraphs 1 and 2 of the Notes. Paragraphs 1 and 2
of each Note, whether heretofore issued pursuant to the Original Indenture or
hereafter issued pursuant to the Indenture, are hereby amended by deleting
such paragraphs and replacing them with the following:
1. "INTEREST. Golden Northwest Aluminum Holding
Company, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount
of this Note at 10% per annum from April 14,
2005 until the Maturity Date. In the event that the
Company elects to pay interest in the form of
Additional Notes as provided in and in
accordance with the Indenture, interest for any
such period shall accrue and be paid (quarterly)
as provided in the Indenture in the form of
Additional Notes. The Company will pay interest
quarterly on June 30, September 30, December 31
and March 31 of each year, or if any such day is
not a Business
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Day, on the next succeeding Business Day (each
an "Interest Payment Date") in cash, or in
Additional Notes as provided in and in
accordance with the Indenture. Interest on the
Notes will accrue from the most recent date to
which interest has been paid or, if no interest
has been paid (whether in cash or Additional
Notes), from the date of issuance; provided that
if there is no existing Default in the payment
of interest, and if this Note is authenticated
on a date falling between a record date referred
to on the face hereof and the next succeeding
Interest Payment Date for such record date,
interest shall initially accrue from such
Interest Payment Date and thereafter, as
provided above; provided, further, that the
first Interest Payment Date shall be June 30,
2005. The Company shall pay interest (including
post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal from
time to time on demand at a rate that is 2% per
annum in excess of the rate then in effect; it
shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy
Law), on overdue installments of interest from
time to time on demand at the same rate to the
extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay
interest on the Notes (except defaulted
interest) to the Persons who are registered
Holders of Notes at the close of business on the
June 15, September 15, December 15 or March 15
next preceding the Interest Payment Date, even
if such Notes are canceled after such record
date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest.
The Notes will be payable as to principal and
interest at the office or agency of the Company
maintained for such purpose within or without
the City and State of New York, or, at the
option of the Company, payment of interest may
be made by check mailed to the Holders at their
addresses set forth in the register of Holders,
and provided that payment by wire transfer of
immediately available funds will be required
with respect to principal of and interest on,
all Global Notes and all other Notes the Holders
of which shall have provided wire transfer
instructions to the Company or the Paying Agent;
provided, however, that as and to the extent
provided in the Indenture, the Company may elect
to pay interest through the issuance of
Additional Notes. Such payment shall be in such
coin or currency of the United States of America
as at the time of payment is legal tender for
payment of public and private debts."
(b) Paragraph 4 of the Notes is hereby amended by adding the
following before the period at the end of such paragraph, "plus the amount
of any Additional Notes issued as provided in the Indenture."
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ARTICLE III
GENERAL PROVISIONS
Section 3.01. Effectiveness and Operativeness. The provisions of this
Supplemental Indenture shall become effective, and the amendments provided for
in Articles I, and II of this Supplemental Indenture shall be operative,
immediately upon the execution hereof by the parties hereto following the
qualification of the Indenture pursuant to the TIA.
Section 3.02. Ratification of Indenture. The Original Indenture is in all
respects acknowledged, ratified and confirmed, and shall continue in full force
and effect in accordance with the terms thereof and as supplemented by this
Supplemental Indenture. The Original Indenture and this Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.
Section 3.03. Certificate and Opinion as to Conditions Precedent.
Simultaneously with and as a condition to the execution of this Supplemental
Indenture, the Issuer is delivering to the Trustee:
(a) an Officer's Certificate in the form attached hereto as
Exhibit A; and
(b) an Opinion of Counsel covering the matters described in
Exhibit B attached hereto.
Section 3.04. Effect of Headings. The Article and Section headings in this
Supplemental Indenture are for convenience only and shall not affect the
construction of this Supplemental Indenture.
Section 3.05. Governing Law. THIS SUPPLEMENTAL 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 WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS, OTHER THAN GENERAL OBLIGATION LAW
SECTIONS 5-1401 AND 5-1402.
Section 3.06. Multiple Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 3.07. Trustee's Disclaimer. The recitals contained in this
Supplemental Indenture shall be taken as the statements of the Issuer and the
Guarantors, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity, enforceability or
sufficiency of this Supplemental Indenture.
Section 3.08. Successors and Assigns. All agreements of the Issuer and the
Guarantors in this Supplemental Indenture shall bind its successors and assigns.
All agreements of the Trustee in this Supplemental Indenture shall bind its
successors and assigns.
[Remainder of Page Left Blank Intentionally; Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this Supplemental Indenture have
caused the Supplemental Indenture to be duly executed as of day and year
first above written.
SIGNATURES
GOLDEN NORTHWEST ALUMINUM
HOLDING COMPANY
By:________________________
Name:
Title:
NORTHWEST ALUMINUM TECHNOLOGIES, LLC
By:________________________
Name:
Title:
NORTHWEST ALUMINUM COMPANY
By:________________________
Name:
Title:
NORTHWEST ALUMINUM SPECIALTIES, INC.
By:________________________
Name:
Title:
NSC SMELTER LLC
By:________________________
Name:
Title:
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WILMINGTON TRUST COMPANY, as Trustee
By:________________________
Name:
Title:
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EXHIBIT A
GOLDEN NORTHWEST ALUMINUM HOLDING COMPANY
OFFICER'S CERTIFICATE
The undersigned, Xxxxxx X. Xxxxx, the President of Golden Northwest
Aluminum Holding Company, a Delaware corporation (the "Issuer"), does hereby
certify, pursuant to Section 9.06 of that certain Indenture, dated as of April
14, 2005 by and among the Issuer, the Guarantors and the Trustee, as follows
(capitalized terms herein being used with the meanings assigned to them in the
First Supplemental Indenture dated as of the date hereof (the "Supplemental
Indenture"), unless otherwise defined herein):
1. The undersigned has read Section 9.01 of the Original Indenture.
2. In my opinion, I have made such examination and investigation as is
necessary to enable us to express an informed opinion as to whether or not the
conditions precedent in the Original Indenture requiring compliance by the
Issuer prior to or concurrently with the execution and delivery by the Issuer of
the Supplemental Indenture have been complied with.
3. In my opinion, each of the conditions precedent in the Indenture
requiring compliance by the Issuer prior to or concurrently with the execution
and delivery by the Issuer of the Supplemental Indenture have been complied
with, and the Trustee is authorized or permitted, pursuant to Section 9.01 of
the Original Indenture, to execute the Supplemental Indenture.
[Signature Page follows]
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IN WITNESS WHEREOF, the undersigned has executed this Officer's
Certificate as of ________________, 2005.
___________________________
Xxxxxx X. Xxxxx, President of
Golden Northwest Aluminum
Holding Company
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EXHIBIT B
Matters to be Covered by Opinion of Counsel to the Issuer and Guarantors
------------------------------------------------------------------------
1. Each of the conditions precedent in the Indenture requiring
compliance by the Issuer or Guarantors, as the case may be, prior to or
concurrently with the execution and delivery by the Issuer or Guarantors, as the
case may be, of the Supplemental Indenture has been complied with by the Issuer
or Guarantors, as the case may be, and the Trustee is authorized or permitted,
pursuant to Section 9.01 of the Original Indenture, to execute the Supplemental
Indenture.
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