EXECUTION VERSION
NEENAH FOUNDRY COMPANY
11% SENIOR SECOND SECURED NOTES DUE 2010
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 11% Senior Second Secured Notes
due 2010 (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"), and in a 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 (the
"Subscription Agreement"). 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 and to satisfy a condition of your
obligations under the Subscription Agreement, 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.
"Exchange Offer Registration Period" shall mean the period
following the consummation of the Registered Exchange Offer, which period shall
end on the sooner of the 180th day after the consummation of the Registered
Exchange Offer and the date on which all Exchanging Dealers have sold all New
Securities held by them (unless such period is extended pursuant to Section 4(k)
hereof).
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Subsidiary Guarantors on an
appropriate form under the Act with respect to the Registered Exchange Offer,
all amendments and supplements to such registration statement, including
post-effective amendments thereto, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
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"Exchanging Dealer" shall mean any Holder that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it
acquired for its own account as a result of market-making activities or other
trading activities.
"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 New
Securities are initially issued by the Company, whether in exchange for the PIK
Note Claims referred to in the Plan, upon the exercise of the Rights referred to
in the Plan or pursuant to the Subscription Agreement.
"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.
"Losses" shall have the meaning set forth in Section 7(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.
"New Securities" shall mean the 11% Senior Secured Notes due
2010 issued by the Company containing terms identical in all material respects
to the Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Securities or, if no such interest has
been paid, from the date of their original issue, and (ii) the transfer
restrictions thereon shall be eliminated) to be offered to Holders in exchange
for Securities pursuant to the Registered Exchange Offer.
"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 or the New 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 6 hereof.
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"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.
"Registered Exchange Offer" shall mean the proposed offer of
the Company and the Guarantors to issue and deliver to the Holders that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New 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 3 hereof.
"Shelf Registration Period" shall have the meaning set forth
in Section 3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Subsidiary Guarantors pursuant to
the provisions of Section 3 hereof which covers some or all of the Securities or
New Securities, as applicable, 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 have the meaning set forth in
the preamble hereto.
"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. Registered Exchange Offer.
(a) The Company shall prepare and, not later
than 60 days following the date of the original issuance of the
Securities (or if such 60th day is not a Business Day, the next
succeeding Business Day), shall file with the Commission the Exchange
Offer Registration Statement with respect to the Registered Exchange
Offer. The Company shall use its commercially reasonable best efforts
to cause the Exchange Offer
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Registration Statement to be declared effective under the Act within
140 days of the date of the original issuance of the Securities (or if
such 140th day is not a Business Day, the next succeeding Business
Day).
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Securities
for New Securities (assuming that such Holder is not an Affiliate of
the Company, acquires the New Securities in the ordinary course of such
Holder's business, has no arrangements with any Person to participate
in the distribution of the New Securities and is not prohibited by any
law or policy of the Commission from participating in the Registered
Exchange Offer) to trade such New Securities from and after their
receipt without any limitations or restrictions under the Act and
without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange
Offer, the Company shall:
(i) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal
and related documents;
(ii) keep the Registered Exchange Offer open
for not less than 30 days and not more than 40 days after the
date notice thereof is mailed to the Holders (or, in each
case, longer if required by applicable law);
(iii) use its commercially reasonable best
efforts to keep the Exchange Offer Registration Statement
continuously effective under the Act, supplemented and amended
as required under the Act, to ensure that it is available for
sales of New Securities by Exchanging Dealers during the
Exchange Offer Registration Period;
(iv) utilize the services of a depositary
for the Registered Exchange Offer with an address in the
Borough of Manhattan in New York City, which may be the
Trustee or its Affiliate;
(v) permit Holders to withdraw tendered
Securities at any time prior to the close of business, New
York time, on the last Business Day on which the Registered
Exchange Offer is open;
(vi) prior to effectiveness of the Exchange
Offer Registration Statement, if requested by the Commission,
provide a supplemental letter to the Commission (A) stating
that the Company and the Subsidiary Guarantors are conducting
the Registered Exchange Offer in reliance on the position of
the Commission in Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988) and Morgan Stanley and Co., Inc. (pub.
avail. June 5, 1991); and (B) including a representation that
neither the Company nor any Subsidiary Guarantor has entered
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into any arrangement or understanding with any Person to
distribute the New Securities to be received in the Registered
Exchange Offer and that neither the Company nor any Subsidiary
Guarantor will issue New Securities to any Holder
participating in the Registered Exchange Offer who fails to
certify to the Company that such Holder is acquiring the New
Securities in the ordinary course of business and has no
arrangement or understanding with any Person to participate in
the distribution of the New Securities; and
(vii) comply in all respects with all
applicable laws.
(d) As soon as practicable after the close of
the Registered Exchange Offer, the Company and the Subsidiary
Guarantors shall:
(i) instruct the Trustee to accept for
exchange all Securities tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;
(ii) instruct the Trustee to cancel in
accordance with Section 4(s) hereof all Securities so accepted
for exchange; and
(iii) cause the Trustee promptly to
authenticate and deliver to each Holder a principal amount of
New Securities equal to the principal amount of the Securities
of such Holder so accepted for exchange.
(e) Each Holder participating in the Registered
Exchange Offer shall be required to represent in writing to the Company
that, at the time of the consummation of the Registered Exchange Offer:
(i) any New Securities received by such
Holder will be acquired in the ordinary course of business;
(ii) such Holder has had and will have no
arrangement or understanding with any Person to participate in
the distribution of the Securities or the New Securities
within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the
Company or any of the Subsidiary Guarantors (or if it is such
an Affiliate, that it will comply with the registration and
prospectus delivery requirements of the Act to the extent
applicable).
3. Shelf Registration.
(a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the
Company determines upon advice of its outside counsel that it or any
Subsidiary Guarantor is not permitted to effect the Registered Exchange
Offer as contemplated by Section 2 hereof; (ii) for any other reason
the Exchange Offer Registration Statement is not declared effective by
the Commission under the Act within 180 days of the date of the
original issuance of the Securities (or if such 180th day is not a
Business Day, the next succeeding Business Day) or the Registered
Exchange Offer is
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not consummated within 200 days of the date hereof (or if such 200th
day is not a Business Day, the next succeeding Business Day); or (iii)
any Holder is not eligible to participate in the Registered Exchange
Offer or does not, for any reason, receive in the Registered Exchange
Offer New Securities which are freely tradeable by such Holder (whether
because such Holder is an Affiliate of the Company or otherwise, it
being understood, however, that the requirement that a participating
Broker-Dealer deliver the prospectus contained in the Exchange Offer
Registration Statement in connection with sales of New Securities shall
not result in such New Securities being not "freely tradable"), the
Company shall effect, at its cost, a Shelf Registration Statement in
accordance with subsection (b) below.
(b) (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 3, 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
and/or the New 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 New 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 4(k) 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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4. Additional Registration Procedures. In connection
with any Shelf Registration Statement and, to the extent applicable, any
Exchange Offer 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 any Exchange Offer
Registration Statement and any 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 information set forth in
Annex A hereto on the facing page of the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of
the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer;
(iii) if requested by any Holder, include
the information required by Item 507 or 508 of Regulation S-K,
as applicable, in the Prospectus contained in the Exchange
Offer Registration Statement; and
(iv) in the case of a Shelf Registration
Statement, 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, the Holders of
Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that
has provided in writing to the Company a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder or
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Exchanging Dealer, 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;
(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 or the New
Securities, as the case may be, 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 or New 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 or New
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 or New Securities in connection with the
offering and sale of the Securities or New Securities covered by the
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Prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging
Dealer which so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including all material incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
(h) The Company shall promptly deliver to each
Person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the final
Prospectus included in such Exchange Offer Registration Statement and
any amendment or supplement thereto as any such Person may reasonably
request. The Company and the Subsidiary Guarantors consent to the use
of the Prospectus or any amendment or supplement thereto by any Person
that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the New
Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or
any other offering of Securities or New Securities pursuant to any
Registration Statement, the Company and the Subsidiary Guarantors shall
arrange, if necessary, for the qualification of the Securities or the
New 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, the Registered Exchange Offer or
any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Company and the Subsidiary Guarantors
shall cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing New Securities or Securities
to be issued or sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) 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
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effectiveness of the Exchange Offer Registration Statement provided for
in Section 2 and the Shelf Registration Statement provided for in
Section 3(b) shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to
Section 4(c) hereof to and including the date when the Initial Holders,
the Holders of the Securities and any known Exchanging Dealer shall
have received such amended or supplemented Prospectus pursuant to this
Section 4(k).
(l) Not later than the effective date of any
Registration Statement, the Company shall provide a CUSIP number for
the Securities or the New Securities, as the case may be, registered
under such Registration Statement and provide the Trustee with printed
certificates for such Securities or New Securities, as the case may be,
in a form eligible for deposit with The Depository Trust Company.
(m) 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.
(n) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of
Securities or New 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 or New
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 or New Securities
of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration
Statement, 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 or New Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 7 (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
7.
(q) In the case of any Shelf Registration
Statement, the Company and the Subsidiary Guarantors shall:
(i) make reasonably available for inspection
by the Holders of Securities or New Securities to be
registered thereunder, any underwriter
11
participating in any disposition pursuant to such 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 5 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 such 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
5 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 or New 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 and covering
matters including, but not limited to, those set forth in the
Subscription Agreement;
(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 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 such Shelf Registration
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Statement), addressed to each selling Holder of Securities or
New 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 4(k) 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 4(q)
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.
(r) If a Registered Exchange Offer is to be
consummated, upon delivery of the Securities by Holders to the Company
(or to such other Person as directed by the Company) in exchange for
the New Securities, the Company shall mark, or caused to be marked, on
the Securities so exchanged that such Securities are being canceled in
exchange for the New Securities. In no event shall the Securities be
marked as paid or otherwise satisfied.
(s) 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 or the New Securities, as the case
may be, covered by a Registration Statement; or (ii) if the Securities
were not previously rated, to cause the Securities or the New
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.
(t) 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;
13
(ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification
of underwriters provided in Section 7 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.
(u) 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
or the New Securities, as the case may be, covered by a Registration
Statement.
5. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of its and the Subsidiary
Guarantors' obligations under Sections 2, 3 and 4 hereof, and, in the event of
any Shelf Registration Statement, 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, and, in the case of
any Exchange Offer Registration Statement, will reimburse the Initial Holders
for the reasonable fees and disbursements of one firm or counsel designated by
the Majority Holders to act as counsel for the Initial Holders in connection
therewith.
6. Liquidated Damages. If (i) any Exchange Offer
Registration Statement or Shelf 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, (iii)
the Exchange Offer has not been consummated within 180 days of the date of the
original issuance of the Securities (or if such 180th day is not a Business day,
the next succeeding Business Day), or (iv) 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 (iv) 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.
14
7. Indemnification and Contribution.
(a) The Company and the Subsidiary Guarantors,
jointly and severally, agree to indemnify and hold harmless each Holder
of Securities or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Holder and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), 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 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
(including any Exchanging Dealer) from whom the Person asserting any
such loss, claim, damage or liability purchased the Securities or the
New Securities, as the case may be, to the extent that a final
Prospectus relating to such Securities or New Securities, as the case
may be, 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 or New Securities, as the case may be, 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
4(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 7(d)
to Losses of any underwriter of any
15
Securities or New Securities, as the case may be, 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 7(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in
Section 4(p) hereof.
(b) Each Holder of Securities or New Securities,
as the case may be, 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 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 7 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 7, 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
16
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 7 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
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 7, 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 7 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 7, and will survive the sale by a Holder of Securities or
New Securities covered by a Registration Statement or any termination
or cancellation of this Agreement.
17
8. Underwritten Registrations.
(a) If any of the Securities or New Securities,
as the case may be, 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 or New
Securities, as the case may be, 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.
9. 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.
10. 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 (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, holders of a majority in
aggregate principal amount outstanding of New Securities). 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 or New Securities (the "affected
Securities"), as the case may be, 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.
11. 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.
18
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.
12. 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 Securities and the New Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. 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. Headings. The headings used herein are for
convenience only and shall not affect the construction hereof.
15. 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.
16. 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.
17. Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
18. 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.
19. Third Party Beneficiaries. Holders of Securities and
the other Persons to be indemnified pursuant to Section 7(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
19
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.
20
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: VP-Finance, Treasurer, Secty.
& CFO
ADVANCED CAST PRODUCTS, INC.
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
DALTON CORPORATION
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
DALTON CORPORATION, WARSAW
MANUFACTURING FACILITY
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
DALTON CORPORATION, STRYKER
MACHINING FACILITY CO.
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
DALTON CORPORATION, ASHLAND
MANUFACTURING FACILITY
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
DALTON CORPORATION, KENDALVILLE
MANUFACTURING FACILITY
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
DEETER FOUNDRY, INC.
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
GREGG INDUSTRIES, INC.
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
MERCER FORGE CORPORATION
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
A&M SPECIALTIES, INC.
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
22
\
NEENAH TRANSPORT, INC.
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
CAST ALLOYS, INC.
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
BELCHER CORPORATION
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
PEERLESS CORPORATION
By: /s/ Gary LaChey
------------------------------------
Name: Gary LaChey
Title: VP-Finance, Treasurer, Secty.
& CFO
23
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/ Gary A. Hobart
---------------------------------
Name: Gary A. Hobart
Title: Vice President
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
24
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
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
25
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
26
ANNEX A
Each broker-dealer that receives new securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of these new securities. The letter of
transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of new securities received in exchange for securities where those
securities were acquired by this broker-dealer as a result of market-making
activities or other trading activities. We have agreed that, starting on the
expiration date and ending on the close of business 180 days after the
expiration date, we will make this prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of Distribution."
27
ANNEX B
Each broker-dealer that receives new securities for its own
account in exchange for securities, where those securities were acquired by this
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of those new securities. See "Plan of Distribution."
28
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of these new securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of new securities received in
exchange for securities where those securities were acquired as a result of
market-making activities or other trading activities. We and the subsidiary
guarantors have agreed that, starting on the expiration date and ending on the
close of business 180 days after the expiration date, we will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until __________, 200__, all
dealers effecting transactions in the new securities may be required to deliver
a prospectus.
We will not receive any proceeds from any sale of new
securities by broker-dealers. New securities received by broker-dealers for
their own account pursuant to the exchange offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such new
securities. Any broker-dealer that resells new securities that were received by
it for its own account pursuant to the exchange offer and any broker or dealer
that participates in a distribution of such new securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of new securities and any commissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The letter of transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration date, we and the
Subsidiary Guarantors will promptly send additional copies of this prospectus
and any amendment or supplement to this prospectus to any broker-dealer that
requests such documents in the letter of transmittal. We have agreed to pay all
expenses incident to the exchange offer (including the expenses of one counsel
for the holders of the securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
29
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ______________________________________
Address: ______________________________________
______________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it
acquired the new securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of new securities
and it has no arrangements or understandings with any person to participate in a
distribution of the new securities. If the undersigned is a broker-dealer that
will receive new securities for its own account in exchange for securities, it
represents that the securities to be exchanged for new securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such new securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
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