FIRST SUPPLEMENTAL INDENTURE
EX-4.1
Execution Version
This First Supplemental Indenture, dated as of November 29, 2010 (this “Supplemental Indenture”), among ACCURIDE CORPORATION, a Delaware corporation (together with its successors and assigns, the “Company”), the Company’s domestic subsidiaries, each named in the signature pages hereto (each, a “Guarantor” and, collectively, the “Guarantors”) and WILMINGTON TRUST FSB, as trustee (together with its successors and assigns, in such capacity, the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee have executed and delivered the Indenture, dated as of February 26, 2010 (as amended, supplemented, waived or otherwise modified, the “Indenture”), providing for the issuance of the Company’s 7.5% Senior Convertible Notes due 2020;
WHEREAS, there are now outstanding under the Indenture, Notes in the aggregate principal amount of $145,250,001;
WHEREAS, Section 902 of the Indenture provides that the Company and the Trustee may, with the written consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (the “Requisite Consents”), enter into a supplemental indenture for the purpose of amending the provisions of the Indenture and the Notes listed herein;
WHEREAS, pursuant to Section 1404 of the Indenture, the Company has offered to increase the Conversion Rate for Holders of Notes who surrender their Notes for conversion into shares of our common stock and deliver consents to the proposed amendments to the Indenture set forth below in Article I (the “Amendments”) in accordance with the terms and subject to the conditions described in an amended and restated offer to convert and consent solicitation/prospectus and related letter of transmittal and consent, dated as of November 19, 2010, as amended and supplemented from time to time (the “Conversion Offer and Consent Solicitation”);
WHEREAS, the Company has solicited consents to the Amendments from each Holder of Notes;
WHEREAS, the Amendments require the consent of at least a majority in aggregate principal amount of the Outstanding Notes, and the Company has received and delivered to the Trustee the Requisite Consents to effect the Amendments;
WHEREAS, the Company and the Guarantors have been authorized by resolutions of their respective boards of directors, board of managers or other governing body, as applicable, to
enter into this Supplemental Indenture and have requested that the Trustee join the Company and the Guarantors in the execution of this Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by law, by the Indenture and by the certificate of incorporation and by-laws, or other governing documents, as applicable, of the Company and the Guarantors to make this Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in accordance with its terms, have been duly done and performed.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Guarantors and the Trustee hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE INDENTURE
Section 1.1 Amendments to the Indenture. Upon written notification to the Trustee by the Company on November 29, 2010 (the “Settlement Date”) that the Company has received the Requisite Consents approving the Amendments pursuant to the Conversion Offer and Consent Solicitation at or prior to the expiration date (as defined in the Conversion Offer and Consent Solicitation) in accordance with the terms and conditions of the Conversion Offer and Consent Solicitation (without further act by any Person):
(a) the Company shall be released from its obligations under the following sections of the Indenture, which are hereby deleted in their entirety and, in the case of each such section, replaced with the phrase “[Intentionally Omitted]” (and the form of Note shall be amended to reflect such deletions): Section 1005 (Payment of Taxes and Other Claims); Section 1006 (Maintenance of Properties); Section 1007 (Additional Interest Notice); Section 1008 (Compliance with Laws); Section 1009 (Limitation on Restricted Payments); Section 1010 (Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock); Section 1011 (Limitation on Liens); Section 1012 (Limitation on Transactions with Affiliates); Section 1013 (Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries); Section 1014 (Limitation on Guarantees of Indebtedness by Restricted Subsidiaries); Section 1017 (Limitation on Sales of Assets); Section 1018 (Statement by Officers as to Default); and Section 1108 (Offer to Purchase by Application of Excess Proceeds);
(b) failure to comply with the terms of any of the foregoing sections of the Indenture shall no longer constitute a Default or an Event of Default under the Indenture and shall no longer have any other consequence under the Indenture;
(c) Sections 401(2), (3) and (4) of the Indenture are hereby deleted in their entirety and replaced with the phrase “[Intentionally Omitted]”;
(d) the occurrence of the events described in Sections 501(v), (vi), (vii), (viii) and (ix) of the Indenture shall no longer constitute Events of Default, and each such subsection is hereby deleted in its entirety and replaced with the phrase “[Intentionally Omitted]”;
(e) Sections 801(iii) and (iv) of the Indenture are hereby deleted in their entirety and replaced with the phrase “[Intentionally Omitted]”;
(f) Section 802(b) of the Indenture is hereby deleted in its entirety and replaced with the phrase “[Intentionally Omitted]”;
(g) Section 1019 of the Indenture is hereby replaced in its entirety with the following:
“SECTION 1019. COMMISSION REPORTS AND REPORTS TO HOLDERS.
The Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall at all times comply with Section 314(a) of the TIA.”
(h) Sections 1304(ii), (iii), (iv), (v), (vi) and (vii) of the Indenture are hereby deleted in their entirety and replaced with the phrase “[Intentionally Omitted]”, and any other conditions limiting a legal defeasance or a covenant defeasance set forth in the Indenture or the Notes (other than Section 1304(i) of the Indenture) are hereby deleted;
(i) all definitions set forth in Section 101 of the Indenture that relate to defined terms used solely in covenants or sections deleted by this Supplemental Indenture shall be deleted in their entirety, all references to sections of the Indenture that are used exclusively in the text of the Indenture that are being otherwise eliminated by this Supplemental Indenture shall be deleted in their entirety, and such definitions and references shall be of no further force and effect; and
(j) The first paragraph of Section 5 (Redemption) of each Note (and the form of Note) is hereby replaced in its entirety with the following:
“Optional Redemption. The Notes shall be redeemable by the Company, in whole or in part, at any time, at a price equal to 100% of the principal amount of the Notes to be redeemed, plus, except as described below, any accrued and unpaid interest, Special Interest, if any, up to the Redemption Date.”
ARTICLE II
MISCELLANEOUS
Section 2.1 Instruments To Be Read Together. This Supplemental Indenture is executed as and shall constitute an indenture supplemental to the Indenture, and said Indenture and this Supplemental Indenture shall henceforth be read together.
Section 2.2 Confirmation. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 2.3 Terms Defined. Capitalized terms used in this Supplemental Indenture and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
Section 2.4 Trust Indenture Act Controls. If any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision that is required to be included in this Supplemental Indenture or the Indenture by the Trust Indenture Act of 1939, as amended, as in force at the date that this Supplemental Indenture is executed, the provisions required by the Trust Indenture Act of 1939, as amended, shall control.
Section 2.5 Headings. The headings of the Articles and Sections of this Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
Section 2.6 Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 2.7 Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
Section 2.8 Effectiveness; Termination. The provisions of this Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of Sections 902 and 903 of the Indenture, provided that the Conversion Offer and Consent Solicitation has been completed.
Section 2.9 Acceptance by Trustee. The Trustee accepts the amendments to the Indenture effected by this Supplemental Indenture and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture. In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
Section 2.10 Responsibility of Trustee. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company and not of the Trustee and the Trustee assumes no responsibility for the correctness thereof.
Section 2.11 Endorsement and Change of Form of Notes. Any Notes authenticated and delivered after the close of business on the date that this Supplemental Indenture becomes effective may be affixed to, stamped, imprinted or otherwise legended by the Trustee, with a notation as follows:
“Effective as of November 29, 2010, certain optional redemption provisions, restrictive covenants of the Company and certain of the Events of Default and other
provisions have been deleted or modified, as provided in the Supplemental Indenture, dated as of November 29, 2010. Reference is hereby made to such Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.”
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first written above.
|
|
ACCURIDE CORPORATION |
||
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxx |
|
|
|
|
Name: |
Xxxxxxx X. Xxxxxx |
|
|
|
Title: |
Senior Vice President/General Counsel |
|
|
|
||
|
|
Guarantors: |
||
|
|
|
||
|
|
ACCURIDE CUYAHOGA FALLS, INC. |
||
|
|
ACCURIDE XXXXXXXXX LIMITED LIABILITY COMPANY |
||
|
|
ACCURIDE DISTRIBUTING, LLC |
||
|
|
ACCURIDE EMI, LLC |
||
|
|
AOT INC. |
||
|
|
XXXXXXX HOLDINGS, INC. |
||
|
|
XXXXXXX SEATING, INC. |
||
|
|
XXXXXXX SPECIALTY SEATING, INC. |
||
|
|
BRILLION IRON WORKS, INC. |
||
|
|
ERIE LAND HOLDING, INC. |
||
|
|
FABCO AUTOMOTIVE CORPORATION |
||
|
|
GUNITE CORPORATION |
||
|
|
IMPERIAL GROUP HOLDING CORP. – 1 |
||
|
|
IMPERIAL GROUP HOLDING CORP. – 2 |
||
|
|
JAII MANAGEMENT COMPANY |
||
|
|
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC. |
||
|
|
TRUCK COMPONENTS INC. |
||
|
|
|
||
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxx |
|
|
|
|
Name: |
Xxxxxxx X. Xxxxxx |
|
|
|
Title: |
Secretary |
Signature Page to Supplemental Indenture
|
|
AKW GENERAL PARTNER L.L.C. |
||
|
|
|
||
|
|
By: Accuride Corporation, as Sole Member |
||
|
|
|
||
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxx |
|
|
|
|
Name: |
Xxxxxxx X. Xxxxxx |
|
|
|
Title: |
Senior Vice President/General Counsel |
|
|
|
||
|
|
|
||
|
|
ACCURIDE ERIE L.P. |
||
|
|
|
||
|
|
|
||
|
|
By: AKW General Partner L.L.C., as General Partner |
||
|
|
|
||
|
|
By: Accuride Corporation, as Sole Member |
||
|
|
|
||
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxx |
|
|
|
|
Name: |
Xxxxxxx X. Xxxxxx |
|
|
|
Title: |
Senior Vice President/General Counsel |
|
|
|
||
|
|
|
||
|
|
IMPERIAL GROUP, L.P. |
||
|
|
|
||
|
|
|
||
|
|
By: Imperial Group Holding Corp. — 1, its General Partner |
||
|
|
|
||
|
|
|
|
|
|
|
By: |
/s/ Xxxxxxx X. Xxxxxx |
|
|
|
|
Name: |
Xxxxxxx X. Xxxxxx |
|
|
|
Title: |
Secretary |
Signature Page to Supplemental Indenture
|
|
WILMINGTON TRUST FSB, as Trustee |
||
|
|
|
|
|
|
|
By: |
/s/ Xxxx Xxxxxxxxx |
|
|
|
|
Name: |
Xxxx Xxxxxxxxx |
|
|
|
Title: |
Vice President |
Signature Page to Supplemental Indenture
