EXECUTION VERSION
NEENAH FOUNDRY COMPANY
13% SENIOR SUBORDINATED NOTES DUE 2013
REGISTRATION RIGHTS AGREEMENT
New York, New York
October 8, 2003
Mackay Shields LLC
Citicorp Mezzanine III, L.P.
TCW Shared Opportunity Fund II, L.P.
Shared Opportunity Fund IIB LLC
TCW Shared Opportunity Fund IV, L.P.
TCW Shared Opportunity Fund IVB, L.P.
AIMCO CDO, Series 2000-A
TCW High Income Partners, Ltd.
TCW High Income Partners II, Ltd.
Metropolitan Life Insurance Company
Exis Differential Holdings Ltd.
Ladies and Gentlemen:
Neenah Foundry Company, a company organized under the laws of
Wisconsin (the "Company"), proposes to issue its 13% Senior Subordinated Notes
due 2013 (the "Notes") pursuant to, and upon the terms set forth in, the
Company's Plan of Reorganization (the "Plan") under chapter 11 of Title 11 of
the United States Code (the "Bankruptcy Code"). The Notes will be guaranteed
(the "Guarantees" and, together with the Notes, the "Securities") by each of the
Company's direct and indirect subsidiaries set forth on the signature page
hereto (the "Subsidiary Guarantors"). In accordance with the Plan, the Company
and the Subsidiary Guarantors, jointly and severally, agree with you for your
benefit and the benefit of the holders from time to time of the Securities (each
a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Subscription Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Actual Interest Amount" shall mean, with respect to any Note and with
respect to any Registration Default Period, an amount equal to the amount of
interest accruing on such Note during such Registration Default Period pursuant
to the terms of such Note and the Indenture.
"Assumed Interest Amount" shall mean, with respect to any Note and
with respect to any Registration Default Period, an amount equal to the amount
of interest which would accrue on such Note during such Registration Default
Period at a rate equal to:
(a) during the first 90 days of such Registration Default period, the
rate of interest payable on such Note pursuant to the terms of such Note
and the Indenture, plus 0.25%, and
(b) during each subsequent 90-day period of such Registration Default
Period, the rate of interest utilized in calculating the Assumed Interest
Amount with respect to the prior 90 days of such Registration Default
Period, plus an additional 0.25%.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such other Person. For purposes of this definition, control of a Person shall
mean the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise; and the
terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Guarantees" shall have the meaning set forth in the preamble hereto.
"Holder" and "Holders" shall have the respective meanings set forth in
the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of the date hereof, among the Company, the Subsidiary Guarantors and The Bank
of New York, as Trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Holders" shall mean the persons to whom the Securities are
initially issued by the Company pursuant to the Plan.
"Liquidated Damages" shall mean with respect to any Note and with
respect to any Registration Default Period an amount equal to (a) the Assumed
Interest Amount for the duration of such Registration Default Period, minus (b)
the Actual Interest Amount for the duration of such Registration Default Period.
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"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered or to be registered under a
Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Notes" shall have the meaning set forth in the preamble hereto.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities covered by such Registration
Statement, and all amendments and supplements thereto and all material
incorporated by reference therein.
"Registration Default" shall have the meaning set forth in Section 5
hereof.
"Registration Default Period" shall mean the period commencing on the
day upon which a Registration Default shall have occurred and concluding on the
day upon which such Registration Default shall have been cured, inclusive.
"Registration Statement" shall mean any Shelf Registration Statement
that covers any of the Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" shall have the meaning set forth in
Section 2(a)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Subsidiary Guarantors pursuant to the
provisions of Section 2 hereof which covers some or all of the Securities, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Subscription Agreement" shall mean the Subscription Agreement, dated
as of October 7, 2003, by and among the Investors referred to therein, ACP
Holding Company, the Company and the Subsidiary Guarantors listed therein.
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"Subsidiary Guarantors" shall have the meaning set forth in the
preamble hereto.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"underwriter" shall mean any underwriter of the Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Shelf Registration.
(a) (i) The Company shall, as promptly as practicable (but in no
event more than 60 days after so required or requested pursuant to this
Section 2, or if such 60th day is not a Business Day, the next succeeding
Business Day), file with the Commission and thereafter shall use its
commercially reasonable best efforts to cause to be declared effective
under the Act a Shelf Registration Statement relating to the offer and sale
of the Securities, as applicable, by the Holders thereof from time to time
in accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement; provided, however, that no
Holder (other than an Initial Holder) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder.
(ii) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus
forming part thereof to be usable by Holders for so long as any Holder
shall require in order to offer or sell any of its Securities
publicly, freely and without restriction (the "Shelf Registration
Period"). The Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective during the
Shelf Registration Period if it voluntarily takes any action that
would result in Holders of Securities covered thereby not being able
to offer and sell such Securities publicly, freely and without
restriction during that period, unless (A) such action is required by
applicable law; or (B) such action is taken by the Company in good
faith and for valid business reasons (not including avoidance of the
Company's obligations hereunder), including the acquisition or
divestiture of assets (to the extent permitted by the terms of the
Indenture), so long as the Company promptly thereafter complies with
the requirements of Section 3(i) hereof, if applicable.
(iii) The Company shall cause at all times and from time to
time the Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date of the
Shelf Registration Statement or such amendment or supplement, (A) to
comply in all material respects with the applicable requirements of
the Act; and (B) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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3. Additional Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, prior to the filing thereof with the
Commission, a copy of the Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including, upon reasonable request, all
documents incorporated by reference therein after the initial filing)
and shall use its best efforts to reflect in each such document, when
so filed with the Commission, such comments as you reasonably propose;
(ii) include the names of the Holders that propose to sell
Securities pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules
and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or
supplement thereto does not, when the Registration Statement becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not misleading.
(c) The Company shall advise you and the Holders of Securities
covered by any Shelf Registration Statement, and, if requested by you or
any such Holder, shall confirm such advice in writing (which notice
pursuant to clauses (ii) through (v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Company shall
have remedied the basis for such suspension):
(i) when a Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
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(iv) of the receipt by the Company or the Subsidiary
Guarantors of any notification with respect to the suspension of the
qualification of the Securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change
in the Registration Statement or the Prospectus so that, as of such
date, the Registration Statement or the Prospectus does not contain an
untrue statement of a material fact and does not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company shall use its commercially reasonable best
efforts to obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement or the qualification of the securities
therein for sale in any jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities
covered by any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference, and, if
the Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities covered by any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request.
The Company and the Subsidiary Guarantors consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Securities in connection with the offering and sale of the
Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) Prior to any offering of Securities pursuant to any
Registration Statement, the Company and the Subsidiary Guarantors shall
arrange, if necessary, for the qualification of the Securities for sale
under state securities or blue sky laws of such jurisdictions in the United
States as any Holder shall reasonably request and will maintain such
qualification in effect so long as required; provided that in no event
shall either the Company or any Subsidiary Guarantor be obligated to
qualify to do business or as a dealer in securities in any jurisdiction
where it is not then so qualified or to take any action that would subject
it to service of process in suits or taxation, other than suits arising out
of the initial placement of the Securities or any offering pursuant to a
Shelf Registration Statement, in any such jurisdiction where it is not then
so subject.
(h) The Company and the Subsidiary Guarantors shall cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Securities to be issued or sold pursuant to any
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Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(i) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above during any period of time in which the Company is
required to maintain an effective Registration Statement, the Company shall
promptly prepare a post-effective amendment to the applicable Registration
Statement or an amendment or supplement to the related Prospectus or file
any other required document so that, as thereafter delivered to purchasers
of the securities included therein, the Prospectus shall not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. In such circumstances, the
period of effectiveness of the Shelf Registration Statement provided for in
Section 2(a) shall be extended by the number of days from and including the
date of the giving of a notice of suspension pursuant to Section 3(c)
hereof to and including the date when the Initial Holders and the Holders
of the Securities shall have received such amended or supplemented
Prospectus pursuant to this Section 3(i).
(j) Not later than the effective date of any Registration
Statement, the Company shall provide a CUSIP number for the Securities
registered under such Registration Statement and provide the Trustee with
printed certificates for such Securities in a form eligible for deposit
with The Depository Trust Company.
(k) The Company and the Subsidiary Guarantors shall comply in
all material respects with all applicable rules and regulations of the
Commission and shall make generally available to their security holders no
later than 45 days after the end of the 12-month period (or 90 days if such
period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter after the effective date of the applicable
Registration Statement, an earnings statement satisfying the provisions of
Section 11(a) of the Act.
(l) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act in a timely manner.
(m) The Company may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Securities as
the Company may from time to time reasonably require for inclusion in such
Shelf Registration Statement. The Company may exclude from such Shelf
Registration Statement the Securities of any Holder that unreasonably fails
to furnish such information within a reasonable time after receiving such
request.
(n) The Company and the Subsidiary Guarantors shall enter into
such agreements and take all other appropriate actions (including if
requested an underwriting agreement in customary form) in order to expedite
or facilitate the registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures no less
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favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 6.
(o) The Company and the Subsidiary Guarantors shall:
(i) make reasonably available for inspection by the Holders
of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to the Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries; provided, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of the
Holders by the one firm or counsel designated by the Majority Holders
pursuant to Section 4 hereof; provided, further, that any information
that is designated in writing by the Company or any Subsidiary
Guarantor, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(ii) cause the Company's and the Subsidiary Guarantors'
officers, directors and employees to supply all relevant information
reasonably requested by the Holders or any underwriter, attorney,
accountant or agent in connection with any Shelf Registration
Statement as is customary for similar due diligence examinations;
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Holders by the one
firm or counsel designated by the Majority Holders pursuant to Section
4 hereof; provided, further, that any information that is designated
in writing by the Company or any Subsidiary Guarantor, in good faith,
as confidential at the time of delivery of such information shall be
kept confidential by the Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the
Holders of Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the underwriters, if any,
covering such matters as are
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customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders
and underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Shelf Registration Statement), addressed to
each selling Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 3(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Subsidiary Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section 3(o)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(p) The Company and the Subsidiary Guarantors shall use their
respective best efforts (i) if the Securities have been rated prior to the
initial sale of such Securities, to confirm such ratings will apply to the
Securities covered by a Registration Statement; or (ii) if the Securities
were not previously rated, to cause the Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect
to the related Registration Statement or by any Managing Underwriters.
(q) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc.) thereof, whether as a Holder of such Securities
or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company and the Subsidiary Guarantors
shall assist such Broker-Dealer in complying with the requirements of such
Rules and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration
Statement is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Securities;
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(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as
may be required in order for such Broker-Dealer to comply with the
requirements of such Rules.
(r) The Company and the Subsidiary Guarantors shall use their
respective commercially reasonable best efforts to take all other steps
necessary to effect the registration of the Securities covered by a
Registration Statement.
4. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its and the Subsidiary
Guarantors' obligations under Sections 2 and 3 hereof, and will reimburse the
Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith.
5. Liquidated Damages. If (i) any Registration Statement required by
this Agreement is not filed with the Commission on or prior to the date on which
such Registration Statement is required by any provision of this Agreement to be
so filed, (ii) any such Registration Statement has not been declared effective
by the Commission on or prior to the date on which such Registration Statement
is to be so declared effective pursuant to any provision of this Agreement, or
(iii) any Registration Statement required by this Agreement is filed and
declared effective, but shall thereafter cease to be effective or fail to be
usable for its intended purpose for any reason (including, but not limited to,
by reason of the fact that any of the information set forth, or incorporated by
reference, therein shall not be true, correct and current in all material
respects) (each such event referred to in clauses (i) through (iii) above, a
"Registration Default"), then the Company and the Subsidiary Guarantors hereby
jointly and severally agree to pay to each Holder of Securities affected thereby
Liquidated Damages; provided that the Company and the Subsidiary Guarantors
shall in no event be required to pay Liquidated Damages for more than one
Registration Default at any given time. All accrued Liquidated Damages shall be
paid to the Holders entitled thereto, in the manner provided for the payment of
interest in the Indenture, on each Interest Payment Date, as more fully set
forth in the Indenture. All obligations of the Company and the Subsidiary
Guarantors to pay Liquidated Damages with respect to securities shall survive
until such time as such obligations with respect to such securities shall have
been satisfied in full.
6. Indemnification and Contribution.
(a) The Company and the Subsidiary Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder of Securities
covered by any Registration Statement (including each Initial Holder), the
directors, officers, employees and agents of each such Holder and each
Person who controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at
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common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company and
the Subsidiary Guarantors will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company and the Subsidiary Guarantors
by or on behalf of any such Holder specifically for inclusion therein, (ii)
with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary Prospectus relating to a
Shelf Registration Statement, the foregoing indemnity shall not inure to
the benefit of any Holder from whom the Person asserting any such loss,
claim, damage or liability purchased the Securities to the extent that a
final Prospectus relating to such Securities was required to be delivered
by such Holder under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Holder results from the failure of
such Holder to send to such Person, at or prior to the written confirmation
of the sale of such Securities, a copy of the final Prospectus if the
Company had previously furnished copies thereof to such Holder and (iii)
the Company and the Subsidiary Guarantors shall not be liable in any such
case to the extent that such loss, claim, damage or liability arises out of
or is based upon the use of a Registration Statement after (x) a stop order
has been issued in a respect of a Registration Statement or (y) a
Registration Statement has been suspended, so long as, in the case of each
of (x) and (y), such Holder has received notice of such action in
accordance with Section 3(c) hereof. This indemnity agreement will be in
addition to any liability which the Company and the Subsidiary Guarantors
may otherwise have.
The Company and the Subsidiary Guarantors also, jointly and severally,
agree to indemnify or contribute as provided in Section 6(d) to Losses of
any underwriter of any Securities registered under a Shelf Registration
Statement, their directors, officers, employees or agents and each Person
who controls such underwriter (within the meaning of the Act or the
Exchange Act) on substantially the same basis as that of the
indemnification of the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 3(n) hereof.
(b) Each Holder of Securities covered by a Registration
Statement severally agrees to indemnify and hold harmless the Company and
the Subsidiary Guarantors, each of their directors, each of their officers
who signs such Registration Statement and each Person who controls the
Company or any of the Subsidiary Guarantors within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity
from the Company and the Subsidiary Guarantors to each
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such Holder, but only with reference to written information furnished to
the Company or the Subsidiary Guarantors by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity and agrees to reimburse each such indemnified party for any legal
or other expenses reasonably incurred, as incurred, by them in connection
with investigation or defending such loss, claim, liability, damage or
action. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses; and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several
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obligation to contribute to the amount paid or payable by such indemnified
party as a result of the aggregate losses, claims, damages and liabilities
referred to in subsection (a) or (b), as the case may be, above (including
legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to
reflect the relative faults of the indemnified and indemnifying parties.
Relative fault shall be determined by reference to, among other things,
whether the Losses arose from any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand,
or by the indemnified party, on the other hand; the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties agree
that it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Holders were treated as one entity for
such purpose) or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each Person
who controls a Holder within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each Person who
controls the Company or any of the Subsidiary Guarantors within the meaning
of either the Act or the Exchange Act, each officer of the Company or any
of the Subsidiary Guarantors who shall have signed the Registration
Statement and each director of the Company or any of the Subsidiary
Guarantors shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Company and the Subsidiary Guarantors or any of the officers,
directors or controlling Persons referred to in this Section 6, and will
survive the sale by a Holder of Securities covered by a Registration
Statement or any termination or cancellation of this Agreement.
7. Underwritten Registrations.
(a) If any of the Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing
Underwriters shall be selected by the Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees
to sell such Person's Securities on the basis reasonably provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
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8. No Inconsistent Agreements. The Company and the Subsidiary
Guarantors have not, as of the date hereof, entered into, nor shall they, on or
after the date hereof, enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, except by the Company and the written
consent of the Majority Holders. Notwithstanding the foregoing (except for the
foregoing proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of some Holders
whose Securities (the "affected Securities") are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Holders representing a majority of
the aggregate principal amount of the affected Securities, voting together as a
single class.
10. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
facsimile transmission or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section,
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture;
(b) if to you, initially at the respective addresses set forth
in the Subscription Agreement; and
(c) if to the Company or the Subsidiary Guarantors, initially at
the address of the Company set forth in the Subscription Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Holders, the Company or the Subsidiary Guarantors by
notice to the other parties may designate additional or different addresses for
subsequent notices or communications.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of the Securities. The Company hereby agrees to
extend the benefits of this Agreement to any Holder of Securities, and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
12. Counterparts. This Agreement may be in signed counterparts, each
of which shall an original and all of which together shall constitute one and
the same agreement.
14
13. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
15. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is 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 hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its Affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
17. Specific Performance. Without limiting or waiving in any respect
any rights or remedies of the parties under this Agreement now or hereinafter
existing at law or in equity or by statute, each of the parties hereto shall be
entitled to seek specific performance of the obligations to be performed by the
other(s) in accordance with the provisions of this Agreement.
18. Third Party Beneficiaries. Holders of Securities who are
Affiliates of the Company and the other Persons to be indemnified pursuant to
Section 6(a) hereof are intended third party beneficiaries of this Agreement,
and this Agreement shall inure to the benefit of and may be enforced by, such
Persons. Other than as set forth in the preceding sentence, this Agreement shall
be binding upon and inure solely to the benefit of each party hereto.
15
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company, the Subsidiary Guarantors and the Initial Holders.
Very truly yours,
NEENAH FOUNDRY COMPANY
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
ADVANCED CAST PRODUCTS, INC.
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
DALTON CORPORATION
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
DALTON CORPORATION, WARSAW
MANUFACTURING FACILITY
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
DALTON CORPORATION, STRYKER
MACHINING FACILITY CO.
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
16
DALTON CORPORATION, ASHLAND
MANUFACTURING FACILITY
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
DALTON CORPORATION, KENDALVILLE
MANUFACTURING FACILITY
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
DEETER FOUNDRY, INC.
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
GREGG INDUSTRIES, INC.
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
MERCER FORGE CORPORATION
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
A&M SPECIALTIES, INC.
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
17
NEENAH TRANSPORT, INC.
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
CAST ALLOYS, INC.
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
BELCHER CORPORATION
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
PEERLESS CORPORATION
By: /s/ Gary LaChey
-------------------------------------
Name: Gary LaChey
Title:
18
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
MACKAY SHIELDS LLC
By: /s/ Don Morgan III
-------------------------------------
Name: Don Morgan III
Title: Senior Managing Director
CITICORP MEZZANINE III, L.P.
By: /s/ Byron Knief
-------------------------------------
Name: Byron Knief
Title: Senior Vice President
TCW Shared Opportunity Fund II, L.P.
By: TCW Investment Management Company
Its Investment Manager
By: /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
By: /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
19
Shared Opportunity Fund IIB LLC
By: TCW Asset Management Company
as its Investment Advisor
By: /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
By: /s/ Gary A. Hobart
-------------------------------------
Name: Gary A. Hobart
Title: Vice President
TCW Shared Opportunity Fund IV, L.P. and
TCW Shared Opportunity Fund IVB, L.P.
By: TCW Asset Management Company
Its Investment Advisor
By: /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
By: /s/ Gary A. Hobart
-------------------------------------
Name: Gary A. Hobart
Title: Vice President
20
AIMCO CDO, Series 2000-A
By: Allstate Investment Management Company
Its Collateral Manager
By: TCW Asset Management Company
Its Investment Advisor
By: /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
By: /s/ Gary A. Hobart
-------------------------------------
Name: Gary A. Hobart
Title: Vice President
TCW High Income Partners, Ltd.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
TCW High Income Partners II, Ltd.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Nicholas W. Tell, Jr.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Jacqueline D. Jenkins
-------------------------------------
Name: Jacqueline D. Jenkins
Title: Managing Director
EXIS DIFFERENTIAL HOLDINGS LTD.
By: /s/ Chris Kane
-------------------------------------
Name: Chris Kane
Title: Portfolio Manager
21