Exhibit 4.1
EXECUTION COPY
MICRON NOTES CORPORATION TO BE MERGED WITH AND INTO
AUTOCAM CORPORATION
10.875% SENIOR SUBORDINATED NOTES DUE 2014
----------------------------
INDENTURE
Dated as of June 10, 2004
----------------------
J.P. Morgan Trust Company, National Association
Trustee
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................................... 7.10
(a)(2)................................................................... 7.10
(a)(3)................................................................... N.A.
(a)(4)................................................................... N.A.
(a)(5)................................................................... 7.10
(b)...................................................................... 7.10
(c)...................................................................... N.A.
311(a)...................................................................... 7.11
(b)...................................................................... 7.11
(c)...................................................................... N.A.
312(a)...................................................................... 2.05
(b)...................................................................... 13.03
(c)...................................................................... 13.03
313(a)...................................................................... 7.06
(b)(1)................................................................... N.A.
(b)(2)................................................................... 7.06; 7.07
(c)...................................................................... 7.06; 13.02
(d)...................................................................... 7.06
314(a)...................................................................... 4.03;13.02; 13.05
(b)...................................................................... N.A.
(c)(1)................................................................... 13.04
(c)(2)................................................................... 13.04
(c)(3)................................................................... N.A.
(d)...................................................................... N.A.
(e)...................................................................... 13.05
(f)...................................................................... N.A.
315(a)...................................................................... 7.01
(b)...................................................................... 7.05; 13.02
(c)...................................................................... 7.01
(d)...................................................................... 7.01
(e)...................................................................... 6.11
316(a) (last sentence)...................................................... 2.09
(a)(1)(A)................................................................ 6.05
(a)(1)(B)................................................................ 6.04
(a)(2)................................................................... N.A.
(b)...................................................................... 6.07
(c)...................................................................... 2.12
317(a)(1)................................................................... 6.08
(a)(2)................................................................... 6.09
(b)...................................................................... 2.04
318(a)...................................................................... 13.01
(b)...................................................................... N.A.
(c)...................................................................... 13.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions................................................................................ 1
Section 1.02 Other Definitions.......................................................................... 25
Section 1.03 Incorporation by Reference of Trust Indenture Act.......................................... 25
Section 1.04 Rules of Construction...................................................................... 26
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating............................................................................ 26
Section 2.02 Execution and Authentication............................................................... 27
Section 2.03 Registrar and Paying Agent................................................................. 28
Section 2.04 Paying Agent to Hold Money in Trust........................................................ 28
Section 2.05 Holder Lists............................................................................... 28
Section 2.06 Transfer and Exchange...................................................................... 28
Section 2.07 Replacement Notes.......................................................................... 40
Section 2.08 Outstanding Notes.......................................................................... 41
Section 2.09 Treasury Notes............................................................................. 41
Section 2.10 Temporary Notes............................................................................ 41
Section 2.11 Cancellation............................................................................... 41
Section 2.12 Defaulted Interest......................................................................... 42
Section 2.13 CUSIP Numbers.............................................................................. 42
Section 2.14 Issuance of Additional Notes............................................................... 42
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee......................................................................... 43
Section 3.02 Selection of Notes to Be Redeemed or Purchased............................................. 43
Section 3.03 Notice of Redemption....................................................................... 43
Section 3.04 Effect of Notice of Redemption............................................................. 44
Section 3.05 Deposit of Redemption or Purchase Price.................................................... 44
Section 3.06 Notes Redeemed or Purchased in Part........................................................ 45
Section 3.07 Optional Redemption........................................................................ 45
Section 3.08 Mandatory Redemption....................................................................... 46
Section 3.09 Special Mandatory Redemption............................................................... 46
Section 3.10 Offer to Purchase by Application of Excess Proceeds........................................ 46
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes........................................................................... 48
Section 4.02 Maintenance of Office or Agency............................................................ 48
Section 4.03 Reports.................................................................................... 49
Section 4.04 Compliance Certificate..................................................................... 50
Section 4.05 Taxes...................................................................................... 50
Section 4.06 Stay, Extension and Usury Laws............................................................. 51
Section 4.07 Restricted Payments........................................................................ 51
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Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries............................. 54
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock................................. 56
Section 4.10 Asset Sales................................................................................ 60
Section 4.11 Transactions with Affiliates............................................................... 61
Section 4.12 Liens...................................................................................... 63
Section 4.13 Business Activities........................................................................ 63
Section 4.14 Corporate Existence........................................................................ 64
Section 4.15 Offer to Repurchase Upon Change of Control................................................. 64
Section 4.16 No Layering of Debt........................................................................ 66
Section 4.17 Payments for Consent....................................................................... 66
Section 4.18 Guarantees................................................................................. 66
Section 4.19 Designation of Restricted and Unrestricted Subsidiaries.................................... 66
Section 4.20 Limitation on Ability of Company to Release Funds From Escrow Account...................... 67
Section 4.21 Limitation on Activities of Micron Notes Corporation....................................... 67
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets................................................... 67
Section 5.02 Successor Corporation Substituted.......................................................... 68
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.......................................................................... 69
Section 6.02 Acceleration............................................................................... 71
Section 6.03 Other Remedies............................................................................. 71
Section 6.04 Waiver of Past Defaults.................................................................... 72
Section 6.05 Control by Majority........................................................................ 72
Section 6.06 Limitation on Suits........................................................................ 72
Section 6.07 Rights of Holders to Receive Payment....................................................... 73
Section 6.08 Collection Suit by Trustee................................................................. 73
Section 6.09 Trustee May File Proofs of Claim........................................................... 73
Section 6.10 Priorities................................................................................. 73
Section 6.11 Undertaking for Costs...................................................................... 74
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.......................................................................... 74
Section 7.02 Rights of Trustee.......................................................................... 75
Section 7.03 Individual Rights of Trustee............................................................... 75
Section 7.04 Trustee's Disclaimer....................................................................... 76
Section 7.05 Notice of Defaults......................................................................... 76
Section 7.06 Reports by Trustee to Holders.............................................................. 76
Section 7.07 Compensation and Indemnity................................................................. 76
Section 7.08 Replacement of Trustee..................................................................... 77
Section 7.09 Successor Trustee by Merger, etc........................................................... 78
Section 7.10 Eligibility; Disqualification.............................................................. 78
Section 7.11 Preferential Collection of Claims Against Company.......................................... 78
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance................................... 78
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Section 8.02 Legal Defeasance and Discharge............................................................. 78
Section 8.03 Covenant Defeasance........................................................................ 79
Section 8.04 Conditions to Legal or Covenant Defeasance................................................. 79
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions. ............................................................................... 81
Section 8.06 Repayment to Company....................................................................... 81
Section 8.07 Reinstatement.............................................................................. 81
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders................................................................. 82
Section 9.02 With Consent of Holders.................................................................... 82
Section 9.03 Compliance with Trust Indenture Act........................................................ 84
Section 9.04 Revocation and Effect of Consents.......................................................... 84
Section 9.05 Notation on or Exchange of Notes........................................................... 84
Section 9.06 Trustee to Sign Amendments, etc............................................................ 84
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate................................................................... 85
Section 10.02 Liquidation; Dissolution; Bankruptcy....................................................... 85
Section 10.03 Default on Designated Senior Debt.......................................................... 85
Section 10.04 Acceleration of Notes...................................................................... 86
Section 10.05 When Distribution Must Be Paid Over........................................................ 86
Section 10.06 Notice by Company.......................................................................... 86
Section 10.07 Subrogation................................................................................ 87
Section 10.08 Relative Rights............................................................................ 87
Section 10.09 Subordination May Not Be Impaired by Company............................................... 87
Section 10.10 Distribution or Notice to Representative................................................... 87
Section 10.11 Rights of Trustee and Paying Agent......................................................... 88
Section 10.12 Authorization to Effect Subordination...................................................... 88
Section 10.13 Amendments................................................................................. 88
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.................................................................................. 88
Section 11.02 Subordination of Note Guarantee............................................................ 89
Section 11.03 Limitation on Guarantor Liability.......................................................... 89
Section 11.04 Execution and Delivery of Note Guarantee................................................... 90
Section 11.05 Guarantors May Consolidate, etc., on Certain Terms......................................... 90
Section 11.06 Releases................................................................................... 91
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge................................................................. 92
Section 12.02 Application of Trust Money................................................................. 92
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls............................................................... 93
Section 13.02 Notices.................................................................................... 93
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Section 13.03 Communication by Holders with Other Holders................................................ 94
Section 13.04 Certificate and Opinion as to Conditions Precedent......................................... 94
Section 13.05 Statements Required in Certificate or Opinion.............................................. 94
Section 13.06 Rules by Trustee and Agents................................................................ 95
Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders................... 95
Section 13.08 Governing Law.............................................................................. 95
Section 13.09 No Adverse Interpretation of Other Agreements.............................................. 95
Section 13.10 Successors................................................................................. 95
Section 13.11 Severability............................................................................... 95
Section 13.12 Counterpart Originals...................................................................... 96
Section 13.13 Table of Contents, Headings, etc........................................................... 96
EXHIBITS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF NOTATION OF GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
Exhibit F FORM OF ASSUMPTION AGREEMENT
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INDENTURE dated as of June 10, 2004 between Micron Notes Corporation, a
Delaware corporation, to be merged (the "Issuer Merger") with and into Autocam
Corporation, a Michigan corporation ("Autocam"), immediately after consummation
of the Acquisition (as defined), with Autocam as the surviving corporation, and
J.P. Morgan Trust Company, National Association, as trustee (the "Trustee").
Pursuant to the Agreement and Plan of Merger, dated as of May 1, 2004,
among Micron Holdings Inc., a Delaware corporation, Micron Merger Corporation, a
Delaware corporation and Titan (as defined) in effect on the date of this
Indenture (the "Merger Agreement"), Micron Merger Corporation will be merged
with and into Titan, with Titan as the surviving corporation. As of the date
hereof, Autocam and the Guarantors are not parties to this Indenture. However
upon consummation of the Acquisition and the Issuer Merger, Autocam, the
Guarantors and the Trustee will execute and deliver a supplemental indenture
providing for: (i) the assumption by Autocam of Micron Notes Corporation's
obligations under this Indenture and (ii) each of the Guarantors to become a
party to this Indenture as a Guarantor.
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined) of the
10.875% Senior Subordinated Notes due 2014 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Restricted
Subsidiary of such specified Person, whether or not such Indebtedness
is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Restricted Subsidiary of,
such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person;
provided, that any Indebtedness of such Person that is redeemed,
defeased, retired or otherwise repaid at the time of or immediately upon
consummation of the transaction pursuant to which such Person becomes a
Restricted Subsidiary will not be Acquired Debt.
"Acquisition" means the transactions contemplated by the Merger
Agreement, including the borrowings under the Credit Agreement and the offering
of the Initial Notes.
"Additional Notes" means any Notes (other than the Initial Notes), if
any, issued under this Indenture in accordance with Sections 2.02, 2.14 and 4.09
hereof, as part of the same series as the Initial Notes.
1
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Sale" means:
(1) the sale, lease (other than an operating lease entered
into in the normal course of business), conveyance or other disposition
of any assets or rights; provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole will be
governed by the provisions of Section 4.15 and/or Section 5.01 and not
by the provisions of Section 4.10; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale by the Company or any of its
Restricted Subsidiaries of Equity Interests in any of its Restricted
Subsidiaries.
Notwithstanding the preceding, none of the following items will be deemed to be
an Asset Sale:
(1) any single transaction or series of related transactions
that involves assets having a Fair Market Value of less than $4.0
million;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary
of the Company to the Company or to a Restricted Subsidiary of the
Company;
(4) the sale, lease, conveyance or other disposition of
products, services, inventory or accounts receivable in the ordinary
course of business and any sale or other disposition of damaged,
worn-out or obsolete assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) a Restricted Payment that does not violate Section 4.07 or
a Permitted Investment;
(7) a transfer of assets, by means of trade-in, of equipment
owned by it and used or previously used in the ordinary course of
business, so long as such equipment is replaced, substantially
concurrently, by like-kind equipment;
(8) the sale or transfer of (or the sale or transfer of
interests in) the Company's or any
2
of its Restricted Subsidiaries' accounts receivable and related assets
pursuant to a Receivables Facility or accounts receivable factoring
arrangements pursuant to clause (16) of Section 4.09(b) in each case in
a transaction permitted under the terms of the indenture;
(9) any issuance of, or disposition in, connection with
directors' qualifying shares or investments by foreign nationals
mandated by foreign law; and
(10) the licensing or sublicensing of intellectual property or
other general intangibles to the extent that such license does not
prohibit the licensor from using the intellectual property and
licenses, leases or subleases of other property in the ordinary course
of business.
"Autocam Europe" means Autocam Europe B.V., a Dutch corporation and
direct wholly-owned Subsidiary of the Company.
"Bankruptcy Code" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act. The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of
the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors of
the general partner of the partnership or, if the general partner is
not a corporation, the board or committee of such Person serving a
similar function;
(3) with respect to a limited liability company, the managing
member or members or any controlling committee of managing members
thereof; and
(4) with respect to any other Person, the board or committee
of such Person serving a similar function.
"Borrowing Base" means the sum of:
(1) 80% of the net book value of accounts receivable,
(2) 75% of the net book value of the inventory, and
(3) 50% of the net book value of the property, plant and
equipment.
in each case of the Company and its Restricted Subsidiaries on a consolidated
basis in accordance with GAAP as of the end of the Company's most recently ended
fiscal quarter for which internal financial statements are available.
"Broker-Dealer" has the meaning set forth in any Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
3
"Capital Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet prepared in
accordance with GAAP, and the Stated Maturity thereof will be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership
interests; and
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person, but excluding from all
of the foregoing any debt securities convertible into Capital Stock,
whether or not such debt securities include any right of participation
with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars, euros, Brazil reais and local
currencies held by foreign Restricted Subsidiaries from time to time in
the ordinary course of business;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government (provided that the full
faith and credit of the United States is pledged in support of those
securities) having maturities of not more than one year from the date
of acquisition;
(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances (or in the case of Foreign
Subsidiaries, the foreign equivalent) with maturities not exceeding six
months and overnight bank deposits, in each case, with any lender party
to the Credit Agreement or with any domestic commercial bank that is at
least "adequately capitalized" (as defined in the regulations of its
primary Federal banking regulator) and has Tier 1 Capital (as defined
in such regulations) of not less than $500.0 million;
(4) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clauses (2)
and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's Investors Service, Inc. or Standard & Poor's
Rating Services and, in each case, maturing within six months after the
date of acquisition;
(6) marketable direct obligations issued or fully guaranteed
by any state, commonwealth or territory of the United States of America
or any political subdivision of any such state, commonwealth or
territory or any public instrumentality thereof having the highest
4
rating obtainable from Moody's Investors Service, Inc. or Standard &
Poor's Rating Services and in each case maturing within one year after
the date of acquisition;
(7) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (3)
above;
(8) in the case of any investment by a Foreign Subsidiary,
"Cash Equivalents" will also include: (i) direct obligations of the
sovereign nation (or any agency thereof) in which such Foreign
Subsidiary is organized and is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or
agency thereof) and (ii) investments of the type and maturity described
in clauses (1) through (7) above of foreign obligors, which Investments
or obligors (or the parents of such obligors) have ratings described in
such clauses or equivalent ratings from comparable foreign rating
agencies; and
(9) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (8) of this definition.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance
or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of
the properties or assets of the Company and its Subsidiaries taken as a
whole to any "person" (as that term is used in Section 13(d) of the
Exchange Act) other than a Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company, except where substantially all of the
assets of the Company are transferred to Titan and Titan becomes the
obligor under the Notes;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation), the result of which is that
any "person" (as defined above), other than a Principal or Related
Party of a Principal, becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the Voting Stock of the Company,
measured by voting power rather than number of shares; or
(4) after an initial public offering of the Company or any
direct or indirect Parent of the Company, the first day on which a
majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"Clearstream" means Clearstream Banking, S.A.
"Company" means Micron Notes Corporation, a Delaware corporation, prior
to the consummation of the Issuer Merger and upon and following the consummation
of the Issuer Merger, Autocam, and any and all successors thereto.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in
5
computing such Consolidated Net Income, including, contributions to
legal profit sharing arrangements as required by applicable French law;
plus
(2) the Fixed Charges of such Person and its Restricted
Subsidiaries for such period, to the extent that such Fixed Charges
were deducted in computing such Consolidated Net Income; plus
(3) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash expenses or charges
(excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period)
of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses
or charges were deducted in computing such Consolidated Net Income;
minus
(4) non-cash items increasing such Consolidated Net Income for
such period, other than the accrual of revenue in the ordinary course
of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that without duplication:
(1) the Net Income of any Person that is accounted for by the
equity method of accounting will be included only to the extent of the
amount of dividends or similar distributions paid in cash to the
specified Person or a Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the cumulative effect of a change in accounting principles
will be excluded;
(4) the amortization of any premiums, fees or expenses
incurred in connection with the Acquisition or any other acquisition by
the Company or any of its Restricted Subsidiaries of assets or Capital
Stock or any amounts required or permitted by Accounting Principles
Board Opinions Nos. 16 (including non-cash write-ups and non-cash
charges relating to inventory and fixed assets, in each case arising in
connection with the acquisition) and 17 (including non-cash charges
relating to intangibles and goodwill) to be recorded on the Company's
consolidated balance sheet, in each case in connection with the
Acquisition or such other acquisitions, will be excluded;
(5) any gain or loss realized upon the termination of any
employee benefit plan will be excluded;
(6) any non-cash compensation charge arising from the grant of
or issuance of stock, stock options or other equity based awards will
be excluded;
6
(7) any non-cash impact attributable to the application of the
purchase method of accounting in accordance with GAAP will be excluded;
(8) the Net Income of any Unrestricted Subsidiary will be
excluded, whether or not distributed to the specified Person or one of
its Subsidiaries;
(9) any gain or loss, together with any related provision for
taxes on such gain or loss, realized in connection with (a) any sale or
other disposition of assets; or (b) the disposition of any securities
by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries will be excluded;
(10) any extraordinary gain or loss, together with any related
provision for taxes on such extraordinary gain or loss, will be
excluded; and
(11) fees, costs and expenses incurred by the Company or any
of its Subsidiaries during any period in connection with the
Acquisition (including, without limitation, bonus payments paid to
employees in connection with the Acquisition and write-offs of any debt
issuance costs relating to Indebtedness being retired or repaid in
connection with the Acquisition) will be excluded.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
consummation of an initial public offering; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 13.02 or such other address as to which the Trustee
may give notice to the Company.
"Credit Agreement" means that certain Credit and Guaranty Agreement,
dated as of the closing date of the Acquisition, by and among the Company, the
guarantors each a party thereto, Citicorp North America, Inc., as Administrative
Agent and Goldman Sachs Credit Partners L.P. and Citigroup Global Markets Inc.
as Joint Lead Arrangers and Joint Book Managers, providing for up to $108.0
million of term loan and $50.0 million of revolving credit borrowings, including
any related notes, Guarantees, collateral documents, instruments and agreements
executed in connection therewith, and, in each case, as amended, restated,
modified, renewed, refunded, replaced (whether upon or after termination or
otherwise) or refinanced (including by means of sales of debt securities to
institutional investors) in whole or in part from time to time.
"Credit Facilities" means, one or more debt facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, or
other debt instruments, indentures or agreements in each case, providing for
revolving credit loans, term loans, receivables financing (including through the
sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced (whether upon
or after termination or otherwise) or refinanced (including by means of sales of
debt securities to institutional investors in whole or in part from time to time
(whether or not such added or substituted parties are banks or other
institutions).
7
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06, substantially in
the form of Exhibit A1 hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Senior Debt" means:
(1) any Indebtedness outstanding under the Credit Facilities;
and
(2) after payment in full of all Obligations and termination
of all commitments under the Credit Agreement, any other Senior Debt
permitted under this Indenture the principal amount of which is $20.0
million or more and that has been designated by the Company as
"Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the date
that is 91 days after the date on which the notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07. The amount of Disqualified Stock deemed
to be outstanding at any time for purposes of this Indenture will be the maximum
amount that the Company and its Restricted Subsidiaries may become obligated to
pay upon the maturity of, or pursuant to any mandatory redemption provisions of,
such Disqualified Stock, exclusive of accrued dividends, provided, further that
any class of Capital Stock of such Person that, by its terms, authorized such
Person to satisfy in full its obligations with respect to payment of dividends
or upon maturity, redemption (pursuant to a sinking fund or otherwise) or
repurchase thereof or other payment obligations or otherwise by delivery of
Capital Stock that is not Disqualified Stock, and that is not convertible,
puttable or exchangeable for Disqualified Stock or Indebtedness, will not be
deemed Disqualified Stock so long as such Person satisfied its obligations with
respect thereto solely by the delivery of Capital Stock that is not Disqualified
Stock.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
8
"Equity Offering" means, with respect to any Person, a public or
private offering of Qualified Capital Stock of such Person.
"Escrow Account" has the meaning set forth in the Escrow and Security
Agreement.
"Escrow Agent" has the meaning set forth in the Escrow and Security
Agreement.
"Escrow and Security Agreement" means the Escrow and Security
Agreement, dated as of the date of this Indenture, among Micron Notes
Corporation, the Trustee and J.P. Morgan Trust Company, National Association, as
escrow agent, as such agreement may be amended, modified or supplemented from
time to time.
"Escrow Property" has the meaning set forth in the Escrow and Security
Agreement.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute, and the rules and regulations promulgated by the SEC
thereunder.
"Exchange Notes" means the Notes issued in any Exchange Offer pursuant
to Section 2.06(f).
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement or any similar agreement relating to Additional Notes.
"Exchange Offer Registration Statement" has the meaning set forth in
any Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the date of this Indenture after giving effect to the Acquisition.
"Fair Market Value" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of Directors
of the Company (unless otherwise provided in this Indenture).
"Fixed Charge Coverage Ratio" means, with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Restricted Subsidiaries incurs,
assumes, guarantees, repays, repurchases, redeems, defeases or otherwise
discharges any Indebtedness (other than ordinary working capital or revolving
credit borrowings) or issues, repurchases or redeems preferred stock subsequent
to the commencement of the period for which the Fixed Charge Coverage Ratio is
being calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect
to such incurrence, assumption, Guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
9
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations, or any Person or any of its Restricted Subsidiaries
acquired by the specified Person or any of its Restricted Subsidiaries,
and including any related financing transactions and including
increases in ownership of Restricted Subsidiaries, during the
four-quarter reference period or subsequent to such reference period
and on or prior to the Calculation Date will be given pro forma effect
(in accordance with Article 11 of Regulation S-X under the Securities
Act) as if they had occurred on the first day of the four-quarter
reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded;
(3) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the
Calculation Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation Date will be deemed to have been a Restricted Subsidiary at
all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness (i) bears a floating rate of interest,
the interest expense on such Indebtedness will be calculated as if the
rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months) and
(ii) that was not outstanding during the period for which the
computation is being made but which bears, at the option of the
borrower, a fixed or floating rate of interest, will be computed by
applying at the option of the Company either the fixed or floating
rate.
"Fixed Charges" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations in respect of
interest rates, but excluding any interest expense deemed attributable
to accounts receivables factoring arrangements contemplated pursuant to
clause (16) of Section 4.09(b); plus
(2) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
10
(3) any interest on Indebtedness of another Person that is
guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon;
plus
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Stock) or to the Company or a Restricted
Subsidiary of the Company, times (b) a fraction, the numerator of which
is one and the denominator of which is one minus the then current
effective combined federal, state and local statutory tax rate of such
Person, expressed as a decimal,
in each case, determined on a consolidated basis in accordance with GAAP.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
that is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2),
which is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A1 hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f).
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America (including any agency or
instrumentality thereof) for the payment of which obligations or guarantees the
full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the issuer's option.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
"Guarantors" means each of:
(1) each Domestic Subsidiary on the date of this Indenture,
Titan and Autocam Europe; and
(2) any other Subsidiary of the Company that executes a Note
Guarantee in accordance with the provisions of this Indenture,
11
and their respective successors and assigns, in each case, until the Note
Guarantee of such Person has been released in accordance with the provisions of
this Indenture.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates or commodity
prices.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations in respect of sale
and leaseback transactions;
(5) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed;
(6) representing any Hedging Obligations; or
(7) all amounts outstanding and other obligations of such
Person in respect of a Receivables Facility;
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
12
"Initial Notes" means the first $140.0 million aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Goldman, Sachs & Co. and Citigroup Global
Markets Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. The term
"Investment" will exclude extensions of credit to customers in the ordinary
course of business on terms customary for the industry. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company will be deemed to have made an Investment
on the date of any such sale or disposition equal to the Fair Market Value of
the Company's Investments in such Subsidiary that were not sold or disposed of
in an amount determined as provided in the final paragraph of Section 4.07. The
acquisition by the Company or any Restricted Subsidiary of the Company of a
Person that holds an Investment in a third Person will be deemed to be an
Investment by the Company or such Restricted Subsidiary in such third Person in
an amount equal to the Fair Market Value (without duplication) of the
Investments held by the acquired Person in such third Person in an amount
determined as provided in the final paragraph of Section 4.07, the
classification of such Investment as a Permitted Investment or a Restricted
Investment as determined in accordance with the terms of this Indenture. Except
as otherwise provided in this Indenture, the amount of an Investment will be
determined at the time the Investment is made and without giving effect to
subsequent changes in value.
"Issue Date" means the date of this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders for use by such Holders in connection
with any Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien (statutory
or otherwise), pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law, including any conditional sale or other title retention
agreement, any lease in the nature of any of the foregoing, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction other than precautionary financing statements with
respect to leases, consignments or other transactions.
"Management Services Agreement" means that certain Management Services
Agreement among Transportation Resources Advisors, LLC, Goldman, Sachs & Co.,
John C. Kennedy, the Company and/or
13
any Parent or Parents and the other parties named therein as in effect on the
date of the Acquisition as the same may be amended from time to time in any
manner no less favorable to the Holders.
"Market Making Shelf Registration Statement" has the meaning set forth
in the Registration Rights Agreement.
"Merger Agreement" means the Agreement and Plan of Merger by and among
Titan, Micron Holdings, Inc. and Micron Merger Corporation in effect on the date
hereof.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends.
"Net Proceeds" means the aggregate cash proceeds and Cash Equivalents
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net
of the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses and other customary fees and expenses actually incurred in
connection with the Asset Sale, taxes paid or reasonably estimated to be payable
as a result of the Asset Sale, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, and
amounts required to be applied to the repayment of Indebtedness, other than
Senior Debt, secured by a Lien on the asset or assets that were the subject of
such Asset Sale and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness:
1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender;
2) no default with respect to which (including any rights that
the holders of the Indebtedness may have to take enforcement action
against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Company or
any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated
or payable prior to its Stated Maturity; and
(3) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the Company
or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by each Guarantor of the Company's
obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes, the Exchange Notes and the Additional Notes shall
be treated as a single class for all purposes under this Indenture, and unless
the context otherwise requires, all references to the Notes shall include the
Initial Notes, the Exchange Notes and any Additional Notes.
14
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Circular" means the offering circular, dated May 26, 2004,
prepared in connection with the sale and distribution of the Notes.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 13.05.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.05. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Parent" means Titan or Micron Holdings, Inc., and any other Person who
Beneficially owns all of the Equity Interests of Titan or Micron Holdings, Inc.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means the design, manufacture and sale of close
tolerance precision machined or molded components and assemblies or activities
that are reasonably similar, ancillary or related to, or in connection with, or
a reasonable extension, development or expansion of, any of the foregoing.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company or in a Person that becomes a Restricted
Subsidiary immediately following such Investment;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of
the Company and, in the case of a Domestic Subsidiary, a
Guarantor; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company and that, in
the case of a Domestic Subsidiary, is a Guarantor;
(4) any Investment made as a result of the receipt of non-cash
consideration from an asset sale that was made pursuant to and in
compliance with, or not subject to Section 4.10.
15
(5) any acquisition of assets or Capital Stock solely in
exchange for the issuance of Equity Interests (other than Disqualified
Stock) of the Company;
(6) any Investments received in compromise or resolution of
(A) obligations of trade creditors or customers that were incurred in
the ordinary course of business of the Company or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer; or (B) litigation, arbitration or other disputes
with Persons who are not Affiliates;
(7) Investments represented by Hedging Obligations;
(8) (i) loans or advances to employees made in the ordinary
course of business of the Company or any Restricted Subsidiary of the
Company or any Parent in an aggregate principal amount not to exceed
$2.0 million at any one time outstanding and (ii) investments made in
connection with the split-dollar life insurance program for certain
senior managers in the ordinary course of business consistent with past
practice;
(9) repurchases of the Notes;
(10) other Investments in any Person other than an Affiliate
of the Company having an aggregate Fair Market Value (measured on the
date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (10) not to exceed $15.0
million at any one time outstanding;
(11) receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business;
(12) Investments in a trust, limited liability company,
special purpose entity or other similar entity in connection with a
Receivables Facility permitted under Section 4.09; provided that such
Investment is necessary or advisable to effect such Receivables
Facility;
(13) payroll, travel, commission and similar advances to cover
matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the
ordinary course of business;
(14) loans, deposits, prepayments, guarantees and other
credits, advances or arrangements to or with customers or suppliers in
the ordinary course of business;
(15) Investments in prepaid expenses, negotiable instruments
held for collection, lease, utility, worker's compensation, performance
and other similar deposits provided to third parties in the ordinary
course of business;
(16) Hedging Obligations that are not entered into for
speculative purposes;
(17) Investments in existence on the date of this Indenture
after giving effect to the Acquisition;
(18) Guarantees of Indebtedness of a Restricted Subsidiary of
the Company given by the Company or a Restricted Subsidiary, in each
case, in accordance with the terms of this Indenture; and
16
(19) any indemnity, purchase price adjustment, earnout or
similar obligation benefiting the Company or any of its Restricted
Subsidiaries created as a result of any acquisition or disposition of
the assets of the Company or the assets or Capital Stock of a Person
that is a Restricted Subsidiary or becomes a Restricted Subsidiary as a
result of such transaction.
"Permitted Junior Securities" means:
(1) Equity Interests in the Company or any Guarantor; or
(2) debt securities that are subordinated to all Senior Debt
and any debt securities issued in exchange for Senior Debt to
substantially the same extent as, or to a greater extent than, the
Notes and the Note Guarantees are subordinated to Senior Debt under
this Indenture, have a final maturity and weighted average life to
maturity not earlier than six months after all Senior Debt or any debt
securities issued in exchange therefor.
"Permitted Liens" means:
(1) Liens on assets of the Company or any of its Restricted
Subsidiaries securing (x) Indebtedness under the Credit Agreement
outstanding or committed immediately following the completion of the
Acquisition or (y) Senior Debt that was otherwise permitted by the
terms of this Indenture to be incurred;
(2) Liens in favor of the Company or the Guarantors and any
other subsidiaries to the extent required pursuant to the Credit
Facilities;
(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Subsidiary of the Company; provided that such Liens were in existence
prior to and not incurred in contemplation of such merger or
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company or the Subsidiary;
and, provided, however, that such Liens may be extended to improvements
to such property;
(4) Liens on property (including Capital Stock) existing at
the time of acquisition of the property by the Company or any
Restricted Subsidiary of the Company; provided that such Liens were in
existence prior to, and not incurred in contemplation of, such
acquisition, and, provided, however, that such Liens may be extended to
improvements to such property;
(5) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds, performance bids, cash,
earnest money deposits, escrows, tenders of contracts, statutory and
common law landlord's liens or other obligations of a like nature
incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of Section 4.09(b) covering only
the assets acquired with or financed by such Indebtedness (including
any extension of such Liens to improvements of such property);
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith provided that any reserve or other appropriate provision as is
required in conformity with GAAP has been made therefore, and Liens in
favor of
17
customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;
(9) Liens imposed by law, such as rights of set-off,
carriers', warehousemen's, landlord's and mechanics' Liens, in each
case, incurred in the ordinary course of business;
(10) survey exceptions, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of real property that were not
incurred in connection with Indebtedness and that do not in the
aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such
Person;
(11) Liens created for the benefit of (or to secure) the
Notes, the Exchange Notes, and the Additional Notes (or the
Guarantees);
(12) Liens to secure any Permitted Refinancing Indebtedness
permitted to be incurred under this Indenture; provided, however, that:
(a) the new Lien will be limited to all or part of
the same property and assets that secured or, under the
written agreements pursuant to which the original Lien arose,
could secure the original Lien (plus improvements and
accessions to, such property or proceeds or distributions
thereof); and
(b) the Indebtedness secured by the new Lien is not
increased to any amount greater than the sum of (x) the
outstanding principal amount, or, if greater, committed
amount, of the Permitted Refinancing Indebtedness and (y) an
amount necessary to pay any fees and expenses, including
premiums, related to such extension, renewal, refunding,
refinancing, replacement, defeasance or discharge; and
(13) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries;
(14) Liens incurred or pledges and deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance, self insurance obligations, bankers'
acceptances, appeal, performances or surety bond or other obligations
of like nature and other types of social security legislation, and in
any such case, any reimbursement obligation in connection therewith;
(15) any Lien securing Indebtedness under Hedging Obligations
or otherwise incurred to hedge interest rate or currency risks that
were permitted by this Indenture to be incurred;
(16) Liens to secure Indebtedness of Foreign Subsidiaries
permitted to be incurred under clause (13) of Section 4.09(b).
(17) any interest or title of a lessor or sublessor under any
lease (other than a Capital Lease Obligation incurred pursuant to the
terms of this Indenture) entered into by the Company or any Restricted
Subsidiary in the ordinary course of its business and covering only the
assets so leased;
(18) any Liens in connection with guarantees or letters of
credit, surety bonds or performance bonds securing the performance of
the Company or any Restricted Subsidiaries
18
incurred in connection with the disposition of the assets of the
Company or its Restricted Subsidiaries or the Capital Stock of a
Restricted Subsidiary;
(19) any Lien securing or by reason of a Receivables Facility
or other contractual requirements of a Receivables Facility entered
into in accordance with Section 4.09; and
(20) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations
that do not exceed $5.0 million at any one time outstanding.
"Permitted Payments to Parent" means, without duplication as to
amounts, the following payments to any Parent (and any subsequent payment by
such Parent to one or more other Parents):
(1) payments for reasonable accounting, legal, administrative
and other general corporate and overhead expenses, franchise taxes and
other fees to maintain the corporate existence of any Parent when due,
in an aggregate amount to all Parents, not to exceed $400,000 per
annum;
(2) for so long as the Company is a member of a group filing a
consolidated or combined tax return with any Parent, payments in
respect of an allocable portion of the tax liabilities of such group
that is attributable to the Company and its Subsidiaries ("Tax
Payments"). The Tax Payments will not exceed the amount of the relevant
tax (including any penalties and interest) that the Company would owe
if the Company were filing a separate tax return (or a separate
consolidated or combined return with its Subsidiaries that are members
of the consolidated or combined group), taking into account any
carryovers and carrybacks of tax attributes (such as net operating
losses) of the Company and such Subsidiaries from other taxable years.
Any Tax Payments received from the Company will be paid over to the
appropriate taxing authority within 30 days of that Parent's receipt of
such Tax Payments or refunded to the Company;
(3) payments in order to enable any of such Parents to pay
fees and expenses, as incurred, of an offering of its securities or
indebtedness that is not consummated, or of a registered public
offering all of the net proceeds of which are payable to selling
stockholders;
(4) payments to enable any of such Parents to repurchase
Equity Interests of the Company or any Parent to the extent such Equity
Interests of the Company or any Parent represent a portion of the
exercise price of such Equity Interests to the extent permitted by
clause (6) under Section 4.07(b).
(5) payment in order to enable any Parent to pay fees and
expenses incurred in connection with the Acquisition; and
(6) payments in order to enable any such Parents to
repurchase, redeem, acquire or retire for value any Equity Interest of
the Company or any Parent held by any current or former officer,
director, employee or consultant of the Company, any Restricted
Subsidiary of the Company or any Parent to the extent permitted by
clause (5) under Section 4.07(b).
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, renew, refund, refinance, replace, defease
or discharge other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:
19
(1) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness
exchanged, extended, renewed, refunded, refinanced, replaced, defeased
or discharged (plus all accrued interest on the Indebtedness and the
amount of all fees and expenses, including premiums, incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being exchanged, extended,
renewed, refunded, refinanced, replaced, defeased or discharged;
(3) if the Indebtedness being exchanged, extended, renewed,
refunded, refinanced, replaced, defeased or discharged is subordinated
in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Notes on terms
at least as favorable to the Holders as those contained in the
documentation governing the Indebtedness being exchanged, extended,
renewed, refunded, refinanced, replaced, defeased or discharged; and
(4) such Indebtedness is incurred either by the Company or by
the Restricted Subsidiary who is the obligor on the Indebtedness being
exchanged, extended, renewed, refunded, refinanced, replaced, defeased
or discharged.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Principals" means GS Capital Partners 2000 L.P., Transportation
Resource Partners L.P. and their related Affiliates and John C. Kennedy and his
immediate family members.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Stock.
"Qualified Proceeds" means any of the following or any combination of
the following:
(1) Cash Equivalents;
(2) the Fair Market Value of assets that are used or useful in
the Permitted Business; and
(3) the Fair Market Value of the Capital Stock of any Person
engaged primarily in a Permitted Business if, in connection with the
receipt by the Company or any of its Restricted Subsidiaries of such
Capital Stock, such Person becomes a Restricted Subsidiary or such
Person is merged or consolidated into the Company or any Restricted
Subsidiary.
"Receivables Facility" means one or more receivables financing
facilities, as amended from time to time, pursuant to which the Company and/or
any of its Restricted Subsidiaries directly, or indirectly through another
Subsidiary, sells or otherwise transfers (or sells or transfers interests in)
its accounts receivable and related assets pursuant to arrangements customary in
the industry, which accounts
20
receivable and related assets are required after such sale or transfer to be
recorded as assets of the Company on its consolidated balance sheet in
accordance with GAAP.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Indenture, between Micron Notes
Corporation and the other parties named on the signature pages thereof, as such
agreement may be amended, modified or supplemented from time to time and, with
respect to any Additional Notes, one or more registration rights agreements
between the Company and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes to register such Additional
Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note in
the form of Exhibit A2 hereto deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Related Party" means:
(1) any controlling stockholder, 80% (or more) owned
Subsidiary or immediate family member (in the case of an individual) of
any Principal;
(2) any trust, corporation, partnership, limited liability
company, estate or other entity, the beneficiaries, stockholders,
partners, members, owners or Persons beneficially holding an 80% or
more controlling interest of which consist of any one or more
Principals and/or such other Persons referred to in the immediately
preceding clause (1); or
(3) the general partner of a partnership or the managing
member of a limited liability company.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
21
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary. As of the date of this Indenture, all of
the Company's Subsidiaries are deemed to be Restricted Subsidiaries.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Exchange Act, the Securities Act and the
TIA, then the body performing such duties at such time.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations promulgated by the SEC under
that act.
"Senior Debt" means:
(1) all Indebtedness of the Company or any Restricted
Subsidiary outstanding under Credit Facilities and all Hedging
Obligations with respect thereto;
(2) any other Indebtedness of the Company or any Guarantor
permitted to be incurred under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to the
Notes or any Note Guarantee; and
(3) all Obligations with respect to the items listed in the
preceding clauses (1) and (2).
Notwithstanding anything to the contrary in the preceding, Senior Debt
will not include:
(1) any liability for federal, state, local or other taxes
owed or owing by the Company;
(2) any intercompany Indebtedness of the Company or any of its
Subsidiaries to the Company or any of its Affiliates;
(3) any trade payables;
(4) the portion of any Indebtedness that is incurred in
violation of this Indenture; provided that Indebtedness outstanding
under Credit Facilities will not cease to be Senior Debt as a result of
this clause (4) if the lenders or agents thereunder obtained a
representation from the
22
Company or any of its Subsidiaries on the date such Indebtedness was
incurred to the effect that such Indebtedness was not prohibited by
(or, in case of revolving credit indebtedness, that the incurrence of
the entire committed amount thereof as of the date committed would not
violate) this Indenture; or
(5) Indebtedness which is classified as non-recourse in
accordance with GAAP or any unsecured claim arising in respect thereof
by reason of the application of section 1111(b)(1) of the Bankruptcy
Code.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Special Interest" means all special interest then owing pursuant to
any Registration Rights Agreement.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of (i) in the case of Existing Indebtedness, the date of
this Indenture, and (ii) in the case of any other Indebtedness, as of the date
incurred, and in each case, will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholder Agreement" means that certain Stockholder Agreement among
Micron Holdings, Inc. and its stockholders to be dated as of the closing date of
the Acquisition.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders' agreement
that effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of
that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa-77bbbb).
"Titan" means Titan Holdings, Inc.
"Trustee" means the Trustee set forth in the preamble to this Indenture
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
23
"Unrestricted Definitive Note" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear and
is not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors, but only to the
extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11, is not party to any
agreement, contract, arrangement or understanding with the Company or
any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding taken as a whole that
are no less favorable to the Company or such Restricted Subsidiary than
those available at the time from Persons who are not Affiliates of the
Company;
(3) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"Voting Stock" of any specified Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect of the Indebtedness, by (b) the number of
years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
24
Section 1.02 Other Definitions.
Defined
in
Term Section
- ---- -------
"Affiliate Transaction"............................................................. 4.11
"Asset Sale Offer".................................................................. 3.10
"Authentication Order".............................................................. 2.02
"Autocam"........................................................................... Preamble
"Change of Control Offer"........................................................... 4.15
"Change of Control Payment"......................................................... 4.15
"Change of Control Payment Date".................................................... 4.15
"Covenant Defeasance"............................................................... 8.03
"Deadline........................................................................... 3.09
"DTC"............................................................................... 2.03
"Event of Default".................................................................. 6.01
"Excess Proceeds"................................................................... 4.10
"incur"............................................................................. 4.09
"Issuer Merger"..................................................................... Preamble
"Legal Defeasance".................................................................. 8.02
"Merger Agreement".................................................................. Preamble
"Offer Amount"...................................................................... 3.10
"Offer Period"...................................................................... 3.10
"Paying Agent"...................................................................... 2.03
"Permitted Debt".................................................................... 4.09
"Payment Blockage Notice"........................................................... 10.03
"Payment Default" .................................................................. 6.01
"Purchase Date"..................................................................... 3.10
"Registrar"......................................................................... 2.03
"Restricted Payments"............................................................... 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and
the Guarantors, respectively, and any successor obligor upon the Notes and the
Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
25
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
and
(7) references to sections of or rules under the Securities
Act will be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
will be substantially in the form of Exhibits A1 and A2 hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note will be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and any Guarantors by the terms of any Supplemental Indenture and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form will be substantially in
the form of Exhibits A1 or A2 hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form will be substantially in the form of
Exhibit A1 hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note will represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
26
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S will be issued initially in the form of the Regulation S Temporary
Global Note, which will be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Clearstream, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The Restricted Period will be terminated upon
the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with
copies of certificates from Euroclear and Clearstream certifying that
they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners
thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities
Act and who will take delivery of a beneficial ownership interest in a
144A Global Note, all as contemplated by Section 2.06(b) hereof); and
(2) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note will be exchanged for
beneficial interests in the Regulation S Permanent Global Note pursuant to the
Applicable Procedures. Simultaneously with the authentication of the Regulation
S Permanent Global Note, the Trustee will cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of
the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream will be applicable to transfers
of beneficial interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Note that are held by Participants through
Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual or facsimile
signature of the Trustee. The signature will be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed
by one Officer (an "Authentication Order"), authenticate Notes for original
issue that may be validly issued under this Indenture, including any Additional
Notes. The aggregate principal amount of Notes outstanding at any time may not
exceed the aggregate principal amount of Notes authorized for issuance by the
Company pursuant to one or more Authentication Orders, except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference
27
in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar will keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company will notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Special Interest, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company will furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders and the
Company shall otherwise comply with TIA Section 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if:
28
(1) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice
from the Depositary;
(2) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes prior to
(A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act; or
(3) there has occurred and is continuing a Default or Event of
Default with respect to the Notes.
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated
and delivered in the form of, and shall be, a Global Note. A Global Note may not
be exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S Temporary
Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
29
(A) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an
amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with
the Applicable Procedures containing information
regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to
be transferred or exchanged; and
(ii) instructions given by the Depositary to
the Registrar containing information regarding the
Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange
referred to in (1) above;
provided that in no event shall Definitive Notes be issued upon the transfer or
exchange of beneficial interests in the Regulation S Temporary Global Note prior
to (A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903 under the Securities
Act.
Upon consummation of an Exchange Offer by the Company in accordance with Section
2.06(f), the requirements of this Section 2.06(b)(2) shall be deemed to have
been satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof.
30
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with any Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) such transfer is effected pursuant to any Shelf
Registration Statement or any Market Making Shelf Registration
Statement, in each case, in accordance with any Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with any Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a)
thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
31
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h), and the Company
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(1) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global Note
to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and (C), a
beneficial interest in the Regulation S Temporary Global Note may not
be exchanged for a Definitive Note or transferred to a Person who takes
delivery thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to
32
Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
any Exchange Offer in accordance with any Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144) of
the Company;
(B) such transfer is effected pursuant to any Shelf
Registration Statement in accordance with any Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to any Exchange Offer Registration Statement or any
Market Making Shelf Registration Statement, in each case, in
accordance with any Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee will cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company will execute and the Trustee
will authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
33
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(4) will be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant.
The Trustee will deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(4)
will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the
Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
34
(A) such exchange or transfer is effected pursuant to
any Exchange Offer in accordance with any Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to any Shelf
Registration Statement or Market Making Shelf Registration
Statement, in each case, in accordance with any Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with any Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee will cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has not
yet been issued, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee will
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
35
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar will register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item
(1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
any Exchange Offer in accordance with any Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to any
Shelf Registration Statement in accordance with any
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to any Exchange Offer Registration Statement in
accordance with any Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
36
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of any Exchange Offer in
accordance with any Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in any
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are
not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive Notes
accepted for exchange in any Exchange Offer by Persons that certify in
the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144)
of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
37
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE),
(4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES
AND OTHER JURISDICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) will not bear the Private Placement
Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
38
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The Regulation
S Temporary Global Note will bear a Legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN). EXCEPT IN THE CASE OF A REDEMPTION OF THE
NOTES PURSUANT TO SECTION 3.09(b) OF THE INDENTURE, NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON IN WHICH CASE ANY SUCH INTEREST DUE SHALL BE
HELD BY THE TRUSTEE."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note will be increased accordingly and an
endorsement will be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company will execute and the Trustee will authenticate Global Notes and
Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.02 or at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.10, 4.15
and 9.05).
39
(3) The Registrar will not be required to register the
transfer of or exchange of any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 and ending at the close of
business on the day of selection;
(B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment
date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee, upon receipt of an
Authentication Order, will authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
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Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(a).
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of
this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes will be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
41
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01. The Company will notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date of
the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) will mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13 CUSIP Numbers.
The Company in issuing the Notes may use CUSIP numbers (if then
generally in use), and, if so, the Trustee will use CUSIP numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption will not be affected by any defect in or omission
of such numbers. The Company will promptly notify the Trustee of any change in
the CUSIP numbers.
Section 2.14 Issuance of Additional Notes.
The Company will be entitled, from time to time, subject to its
compliance with Section 4.09 hereof, without consent of the Holders, to issue
Additional Notes under this Indenture with identical terms as the Initial Notes
issued on the Issue Date other than with respect to (i) the date of issuance,
(ii) the issue price, (iii) the amount of interest payable on the first interest
payment date and (iv) any adjustments in order to conform to and ensure
compliance with the Securities Act (or other applicable securities laws). The
Initial Notes issued on the Issue Date, any Additional Notes and all Exchange
Notes issued in exchange therefor will be treated as a single class for all
purposes under this Indenture.
With respect to any Additional Notes, the Company will set
forth in an Officers' Certificate pursuant to a resolution of the Board of
Directors of the Company, copies of which will be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of
such Additional Notes; provided, however, that no Additional Notes may
be issued at a price that would cause such Additional Notes to have
"original issue discount" within the meaning of Section 1273 of the
Internal Revenue Code of 1986, as amended; and
(3) whether such Additional Notes will be subject to transfer
restrictions or will be issued in the form of Exchange Notes.
42
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07, it must furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase on a pro rata basis, by lot or by such method as the Trustee deems fair
and appropriate, except:
(1) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed;
(2) if otherwise required by law; or
(3) if the redemption is subject to the requirements of the
Depository Trust Company (in which case such provisions will apply).
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.07, 3.09 and 3.10, at least 30
days but not more than 60 days before a redemption date, the Company will mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date if
the notice is issued in
43
connection with a defeasance of the Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 12.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the Company
will deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption or purchase price of and accrued interest and Special Interest,
if any, on all Notes to be redeemed or purchased on that date. The Trustee or
the Paying Agent will promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest and
Special Interest, if any, on, all Notes to be redeemed or purchased.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for
44
redemption or purchase. If a Note is redeemed or purchased on or after an
interest record date but on or prior to the related interest payment date, then
any accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any Note
called for redemption or purchase is not so paid upon surrender for redemption
or purchase because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
or purchase date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to June 15, 2007, the Company may, on any one or
more occasions, redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture (calculated giving effect to any issuance of
Additional Notes) at a redemption price of 110.875% of the principal amount,
plus accrued and unpaid interest and Special Interest, if any, to, but not
including, the redemption date (subject to the right of Holders on any relevant
interest record date to receive interest on the relevant interest payment date),
in an amount up to the net cash proceeds of one or more Equity Offerings (1) by
the Company or (2) by a Parent to the extent the net cash proceeds thereof are
contributed to the Company or used to purchase Qualified Capital Stock from the
Company; provided that:
(1) at least 65% of the aggregate principal amount of Notes
originally issued under this Indenture (calculated giving effect to any
issuance of Additional Notes and excluding Notes held by the Company
and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption occurs within 60 days of the date of the
closing of such Equity Offering.
(b) Except pursuant to the preceding paragraphs, the Notes will not be
redeemable at the Company's option prior to June 15, 2009.
(c) On or after June 15, 2009, the Company may redeem all or a part of
the Notes upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Special Interest, if any, on the Notes redeemed,
to, but not including, the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of the years indicated below, subject
to the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
- ---- ----------
2009............................................................................. 105.438%
2010............................................................................. 103.625%
2011............................................................................. 101.813%
2012 and thereafter.............................................................. 100.000%
45
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06.
Section 3.08 Mandatory Redemption.
Except as described in Section 3.09, the Company is not required to
make mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09 Special Mandatory Redemption.
(a) The Escrow Property, in an aggregate amount of $138,368,013
representing (i) the proceeds from the issuance and sale of the Notes net of
underwriting fees in the amount of $3,764,414, (ii) 50.0% of the aggregate
underwriting discount received by the Initial Purchasers in connection with the
offering of the Notes in the amount of $1,882,207 and (iii) an amount equal to
$3,362,420 contributed by Micron Notes Corporation, will be held by the Trustee,
in its capacity as Escrow Agent, in the Escrow Account pursuant to the Escrow
and Security Agreement. The Escrow Property will be invested as provided in the
Escrow and Security Agreement.
(b) In addition to any payments required by Sections 4.10 and 4.15, if
the conditions to release of the Escrow Property to Micron Notes Corporation and
to any other party entitled thereto in connection with the consummation of the
Acquisition, which are set forth in Section I.3(b) of the Escrow and Security
Agreement, have not been satisfied on or prior to June 30, 2003 (the
"Deadline"), Micron Notes Corporation will redeem all of the outstanding Notes
on July 15, 2004, pursuant to the terms of the Escrow and Security Agreement, at
a redemption price equal to 97.777% of the aggregate principal amount of Notes,
plus accrued and unpaid interest, and the amount of the original issue discount
amortized from June 10, 2004, to but not including July 15, 2004; provided,
however, that the Deadline may be extended one time by Micron Notes Corporation
to a date not later than August 16, 2004, provided that on such extension date
Micron Notes Corporation deposits with the Escrow Agent an amount that, together
with the amount set forth in Section 3.09(a), is sufficient to redeem in cash
the Notes, in whole and not in part, at a redemption price equal to 97.777% of
the aggregate principal amount of the Notes, plus accrued and unpaid interest,
and the amount of the original issue discount amortized from June 10, 2004 to,
but not including, August 30, 2004; provided, further that if the Merger
Agreement is terminated at any time prior to August 16, 2004, Micron Notes
Corporation will redeem all of the outstanding Notes within ten Business Days of
such termination, at a redemption price equal to 97.777% of the aggregate
principal amount of the Notes, plus accrued and unpaid interest, and the amount
of the original issue discount amortized from June 10, 2004 to, but not
including, such date of redemption.
(c) Immediately upon receipt by the Paying Agent of the Escrow
Property, the Trustee will notify the Holders of the date fixed for special
mandatory redemption pursuant to this Section 3.09.
(d) Other than as specifically provided in this Section 3.09, any
redemption pursuant to this Section 3.09 will be made pursuant to the provisions
of Section 3.04 through 3.05.
Section 3.10 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10, the Company is required to
commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it
will follow the procedures specified below.
46
The Asset Sale Offer shall be made to all Holders and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and
not more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than ten Business Days
after the termination of the Offer Period (the "Purchase Date"), the Company
will apply all Excess Proceeds (the "Offer Amount") to the purchase of Notes and
such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if
less than the Offer Amount has been tendered, all Notes and other Indebtedness
tendered in response to the Asset Sale Offer. Payment for any Notes so purchased
will be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Special Interest, if any, will be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 3.10 and Section 4.10 and the length of time the Asset Sale
Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment will
continue to accrete or accrue interest;
(4) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer will
cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant to
any Asset Sale Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" attached to the
Notes completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase
Date;
(7) that Holders will be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and other
equally ranking Indebtedness surrendered by Holders thereof exceeds the
Offer Amount, the Company will select the Notes and other equally
ranking Indebtedness to be purchased on a pro rata basis based on the
principal amount of Notes and such other equally ranking Indebtedness
surrendered (with
47
such adjustments as may be deemed appropriate by the Company so that
only Notes in denominations of $1,000, or integral multiples thereof,
will be purchased); and
(9) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and will
deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.10. The Company, the Depositary or the Paying Agent, as the case
may be, will promptly (but in any case not later than five Business Days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company will promptly issue a new Note, and the
Trustee, upon written request from the Company, will authenticate and mail or
deliver (or cause to be transferred by book entry) such new Note to such Holder,
in a principal amount equal to any unpurchased portion of the Note surrendered.
Any Note not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company will publicly announce the results of the Asset
Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.10, any purchase
pursuant to this Section 3.10 shall be made pursuant to the provisions of
Sections 3.01 through 3.06.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium, if
any, and interest and Special Interest, if any, on, the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Special Interest, if any will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due. The Company will pay all
Special Interest, if any, in the same manner on the dates and in the amounts set
forth in any applicable Registration Rights Agreement.
The Company will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Code) on overdue principal at the then
applicable interest rate on the Notes to the extent lawful; it will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Code)
on overdue installments of interest and Special Interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in Chicago, the City of Illinois, an office
or agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company will give
prompt
48
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company fails to maintain any such
required office or agency or fails to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission will in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company will furnish to the Holders or
cause the Trustee to furnish to the Holders, within the time periods specified
in the SEC's rules and regulations:
(1) all quarterly and annual reports that would be required to
be filed with the SEC on Forms 10-Q and 10-K if the Company were
required to file reports; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports.
All such reports are required to be prepared in all material respects
in accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 10-K is required to include a report on the Company's
consolidated financial statements by the Company's certified independent
accountants. In addition, following the consummation of any Exchange Offer
contemplated by any Registration Rights Agreement, the Company will file a copy
of each of the reports referred to in clauses (1) and (2) above with the SEC for
public availability within the time periods specified in the rules and
regulations applicable to such reports (unless the SEC will not accept such a
filing).
If, at any time after consummation of any Exchange Offer contemplated
by any Registration Rights Agreement, the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding
paragraph with the SEC within the time periods specified above unless the SEC
will not accept such a filing. The Company will not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding
the foregoing, the SEC will not accept the Company's filings for any reason, the
Company will either (i) post the reports referred to in the preceding paragraphs
on its website or (ii) deliver the reports to the Holders, in either case,
within the time periods that would apply if the Company were required to file
those reports with the SEC.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by paragraph (a) of this Section 4.03 will include a reasonably
detailed presentation, either on the face of the financial statements or in the
footnotes thereto, and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, of the financial condition and results of
operations of the Company and its Restricted Subsidiaries
49
separate from the financial condition and results of operations of the
Unrestricted Subsidiaries of the Company.
(c) For so long as any Notes remain outstanding, if at any time they
are not required to file with the SEC the reports required by paragraphs (a) and
(b) of this Section 4.03, the Company and the Guarantors will furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act until such time as the Company has either exchanged the
Notes for the Exchange Notes which are registered under the Securities Act or
until such time as all Holders have disposed of their Notes pursuant to an
effective registration statement under the Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 90 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default has occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company will
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders.
50
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company or any Parent;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company or any Guarantor that is contractually
subordinated in right of payment to the Notes or to any Note Guarantee
(excluding any intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries), except a payment of interest
or principal at the Stated Maturity thereof or a refinancing thereof
with Permitted Refinancing Indebtedness within one year of the final
maturity date thereof; or
(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through (4)
above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section
4.09(a); and
51
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3), (4), (6), (7), (8),
(9), (10), (11), (12), and (13) of paragraph (b) of this Section 4.07),
is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the
date of this Indenture to the end of the Company's most
recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit); plus
(B) 100% of the aggregate Qualified Proceeds received
by the Company since the date of this Indenture as a
contribution to its common equity capital or from the issue or
sale of Equity Interests of the Company (other than
Disqualified Stock) or from the issue or sale of convertible
or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other
than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company); plus
(C) the amount equal to the net reduction in any
Restricted Investment that was made after the date of this
Indenture resulting from payments of interest on Indebtedness,
dividends, repayments of the principal of loans or advances,
or other transfers of assets, in each case, to the Company or
any Restricted Subsidiary and the cash return of capital with
respect to any Restricted Investment; plus
(D) to the extent that any Unrestricted Subsidiary of
the Company designated as such after the date of this
Indenture is redesignated as a Restricted Subsidiary after the
date of this Indenture, the Fair Market Value of the Company's
Investment in such Subsidiary as of the date of such
redesignation; plus
(E) in the event the Company or any Restricted
Subsidiary makes any Investment in a Person that, as a result
of or in connection with such Investment, becomes a Restricted
Subsidiary, an amount equal to the Company's or any Restricted
Subsidiary's existing Investment in such Person that was
previously treated as a Restricted Payment pursuant to this
clause (3); plus
(F) any amount which was previously treated as a
Restricted Payment pursuant to this clause (3) on account of
any Guarantee entered into by the Company or any Restricted
Subsidiary permitted under the terms of this Indenture;
provided that such Guarantee has not been called upon and the
obligation arising under such Guarantee no longer exists.
(b) The provisions of Section 4.07(a) will not prohibit, without
duplication:
(1) the payment of any dividend or the consummation of any
irrevocable redemption within 60 days after the date of declaration of
the dividend or giving of the redemption notice, as the case may be, if
at the date of declaration or notice, the dividend or redemption
payment would have complied with the provisions of this Indenture;
52
(2) the making of any Restricted Payment in exchange for, or
out of, any or all of the net cash proceeds of the sale within 45 days
(other than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than Disqualified Stock) or from the substantially
concurrent contribution of common equity capital to the Company;
provided that the amount of any such net cash proceeds that are
utilized for any such Restricted Payment will be excluded from clause
(3)(B) of the preceding paragraph;
(3) the repurchase, redemption, defeasance, repayment or other
acquisition or retirement for value of Indebtedness of the Company or
any Guarantor that is subordinated in right of payment to the Notes or
to any Note Guarantee out of any or all the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing
Indebtedness;
(4) the payment of any dividend (or, in the case of any
partnership or limited liability company, any similar distribution) by
a Restricted Subsidiary of the Company to the holders of its Equity
Interests on a pro rata basis;
(5) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Parent held by any current or former officer, director, employee or
consultants of the Company or any of its Restricted Subsidiaries or any
Parent; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests (after
taking into account payments under clause (6) of the definition of
"Permitted Payments to Parent") may not exceed $2.0 million in any
twelve-month period (with unused amounts in any immediately preceding
calendar year being carried over to the next succeeding calendar year
subject to a maximum carry-over amount of $2.0 million in any calendar
year) plus the net proceeds of key person life insurance policies
received after the date of this Indenture;
(6) the repurchase of Equity Interests of the Company deemed
to occur upon the exercise of stock options to the extent such Equity
Interests represent a portion of the exercise price of those stock
options;
(7) the declaration and payment of regularly scheduled or
accrued dividends to holders of any class or series of Disqualified
Stock of the Company or any preferred stock of any Restricted
Subsidiary of the Company issued on or after the date of this Indenture
in accordance with the Fixed Charge Coverage Ratio test described in
Section 4.09;
(8) any prepayment, repayment, purchase, repurchase,
redemption, retirement, defeasance or other acquisition for value of
subordinated Indebtedness with any Excess Proceeds that remain after
consummation of an Asset Sale Offer;
(9) (i) any payment or distribution contemplated by the
Acquisition and the financing thereof and (ii) payment of fees not in
excess of $600,000 per annum plus customary out-of-pocket expenses
pursuant to the Management Services Agreement, and in each case,
including any payments to any Parent in order for any Parent to make
such payments;
(10) any repurchase, redemption, retirement or other
acquisition for value of Disqualified Stock of the Company made by
exchange for or out of proceeds of a substantially concurrent sale of
Disqualified Stock that is permitted to be incurred in accordance with
the Fixed Charge Coverage Ratio test described in Section 4.09;
provided any new Disqualified Stock has an aggregate liquidation
preference that does not exceed the aggregate liquidation preference of
the amount so refinanced;
53
(11) Permitted Payments to Parent;
(12) the repurchase of any subordinated Indebtedness of the
Company at a purchase price not greater than 101% of the principal
amount of such subordinated Indebtedness in the event of a Change of
Control pursuant to Section 4.15; provided that prior to consummating
any such repurchase, the Company has made the Change of Control Offer
required by this Indenture and has repurchased all Notes validly
tendered for payment in connection with such Change of Control Offer;
(13) the designation of Autocam-Har, Inc., a Michigan
corporation, as an Unrestricted Subsidiary, but only if, as of the time
of such designation, such entity does not engage in any activities and
owns no assets other than those owned as of the date of this Indenture;
and
(14) so long as no Default has occurred and is continuing or
would be caused thereby, other Restricted Payments in an aggregate
amount not to exceed $10.0 million since the date of this Indenture.
The amount of all Restricted Payments (other than cash) will be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this Section 4.07 will be determined by the Board of Directors of the Company
whose resolution with respect thereto shall be delivered to the Trustee. The
Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm that is not an
Affiliate of any party receiving all or any part of the Restricted Payment if
the Fair Market Value exceeds $12.5 million.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries or
with respect to any other interest or participation in, or measured by,
its profits, or pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) will not apply to encumbrances
or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit
Facilities as in effect on the date of this Indenture and any
amendments, restatements, modifications, renewals, supplements,
refundings, replacements, restructurings (including rate increases) or
refinancings of those agreements; provided that the amendments,
restatements, modifications, renewals, increases, supplements,
refundings, replacements, restructurings (including rate increases) or
refinancings are not materially more restrictive, taken as a whole,
with respect to such dividend
54
and other payment restrictions than those contained in those agreements
on the date of this Indenture;
(2) this Indenture, the Notes, the Exchange Notes, the
Additional Notes and the Note Guarantees;
(3) applicable law, rule, regulation or order including of any
regulatory body;
(4) any agreement, instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness or Capital Stock was incurred
in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; provided that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of
this Indenture to be incurred;
(5) customary non-assignment provisions in (a) any lease
governing a leasehold interest or (b) any contracts and licenses
(including, without limitation, those relating to intellectual
property) entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the
ordinary course of business or Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature
described in clause (3) of Section 4.08(a);
(7) any agreement for the sale or other disposition of the
Capital Stock of a Restricted Subsidiary or any assets of the Company
or any Restricted Subsidiaries that restrict distributions by that
Restricted Subsidiary or distributions of those assets pending the sale
or other disposition;
(8) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as
a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(9) Liens permitted to be incurred under the provision of
Section 4.12 that impose restrictions on the property purchased or
leased of the nature described in clause (3) of Section 4.08(a);
(10) provisions limiting the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
sale-leaseback agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business, which
limitation is applicable only to the assets that are the subject of
such agreements;
(11) customary restrictions on real property interests set
forth in easements and similar arrangements of the Company or any
Restricted Subsidiary;
(12) any encumbrance or restriction existing under or by
reason of a Receivables Facility or other contractual requirements of a
Receivables Facility permitted pursuant to Section 4.09; provided that
such restrictions apply only to such Receivables Facility;
55
(13) restrictions contained in any other indenture governing
debt securities of the Company that are not materially more
restrictive, taken as a whole, than those contained in this Indenture
governing the Notes; and
(14) restrictions on cash or other deposits or net worth
imposed by customers or suppliers under contracts entered into in the
ordinary course of business.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness
(including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock or
such preferred stock is issued, as the case may be, would have been at least 2.0
to 1, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred or
the Disqualified Stock or the preferred stock had been issued, as the case may
be, at the beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) will not prohibit the incurrence
of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any Restricted Subsidiary
(and the Guarantee thereof by the Restricted Subsidiaries) of (i)
Indebtedness under Credit Facilities (with letters of credit being
deemed to have a principal amount equal to the face amount of the
maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) and (ii) Indebtedness under any Receivables
Facility (such amounts outstanding under any such Receivables Facility
not to exceed, together with the uncollected balance of amounts due in
respect of the accounts receivable and interests therein referred to in
clause (16) below, $30.0 million outstanding at any given time in an
aggregate principal amount at any one time outstanding under this
clause (1)) not to exceed the greater of:
(a) $165.0 million less the aggregate amount of all
Net Proceeds of Asset Sales applied by the Company or any of its
Restricted Subsidiaries since the date of this Indenture to repay the
principal amount of any term Indebtedness under a Credit Facility or to
repay the principal amount of any revolving credit Indebtedness under a
Credit Facility and effect a corresponding permanent commitment
reduction thereunder pursuant to Section 4.10; and
(b) the Borrowing Base;
(2) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Issuers and the Guarantors of
Indebtedness represented by the Initial Notes and the related Note
Guarantees to be issued on the date of this Indenture and the Exchange
Notes relating to the Initial Notes and related Note Guarantees to be
issued as contemplated by the Registration Rights Agreement relating to
the Initial Notes;
56
(4) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or improvement of
plant or equipment (including the acquisition of any related property
in connection with such design, construction, installation or
improvement) at the time used in the business of the Company or any of
its Restricted Subsidiaries or within one year after completion of
construction, installation or improvement in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (4), not to exceed $25.0
million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to renew, refund, refinance,
replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under
Section 4.09(a) or clauses (2), (3), (4), (5), (13) and (17) of this
Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on
such Indebtedness and the payee is not the Company or a
Guarantor, such Indebtedness must be expressly subordinated on
terms at least as favorable to the Notes as the subordination
of the Notes to the Senior Debt to the prior payment in full
in cash of all Obligations then due with respect to the Notes,
in the case of the Company, or the Note Guarantee, in the case
of a Guarantor; and
(B) excluding customary pledge arrangements in
connection with the incurrence of Indebtedness otherwise
permitted by this Indenture, (i) any subsequent issuance or
transfer of Equity Interests of such Subsidiary's Equity
Interest that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary of
the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company, will be deemed, in each
case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (6);
(7) the issuance by any of the Company's Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries of
shares of preferred stock; provided, however, that:
(A) any subsequent issuance or transfer of Equity
Interests that results in any such preferred stock being held
by a Person other than the Company or a Restricted Subsidiary
of the Company; and
(B) any sale or other transfer of any such preferred
stock to a Person that is not either the Company or a
Restricted Subsidiary of the Company,
will be deemed, in each case, to constitute an issuance of such
preferred stock by such Restricted Subsidiary that was not permitted by
this clause (7);
57
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations for non-speculative purposes;
(9) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this Section
4.09; provided that if the Indebtedness being guaranteed is
subordinated to or pari passu with the Notes, then the Guarantee will
be subordinated or pari passu, as applicable, to the same extent as the
Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers' compensation
claims, unemployment insurance, self-insurance obligations, bankers'
acceptances, appeal, performance and surety bonds and other obligations
of a like nature in the ordinary course of business and in any such
case any reimbursement obligation in connection therewith;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five Business Days of incurrence;
(12) obligations from agreements to provide for
indemnification, adjustment of purchase price or similar obligations,
earn-outs or other similar obligations, or from guarantees or letters
of credit, surety bonds or performance bonds securing the performance
of the Company or any Restricted Subsidiaries incurred in connection
with the acquisition or disposition of the assets of the Company or the
assets or Capital Stock of a Person that is or becomes a Restricted
Subsidiary of the Company; provided that (A) the maximum aggregate
liability in connection with any such disposition in respect of all
such Indebtedness will at no time exceed the gross proceeds actually
received by the Company and its Subsidiaries in connection with such
disposition and (B) such Indebtedness is not reflected in the balance
sheet of the Company or any Restricted Subsidiary (contingent
obligations referred to in a footnote to financial statements and not
otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this clause (B));
(13) Indebtedness of any Foreign Subsidiary in an aggregate
principal amount which does not exceed $15.0 million plus any
Indebtedness of a Foreign Subsidiary existing at the time it is
acquired by the Company or any Restricted Subsidiary of the Company and
not incurred in contemplation thereof so long as after giving effect to
such acquisition, the Company could incur $1.00 of additional
Indebtedness under the Fixed Charge Coverage Ratio test of Section
4.09(a);
(14) the incurrence by the Company or any of its Restricted
Subsidiaries of Guarantees of Indebtedness of suppliers, customers,
franchisees and licensees in the ordinary course of business as
approved by the Board of Directors of the Company;
(15) Indebtedness to the extent the net proceeds thereof are
promptly deposited to defease the Notes under Article 8 or to redeem,
satisfy or discharge the Notes;
(16) all obligations under accounts receivable factoring
agreements in connection with the sale or transfer (or sale or transfer
of interest in) accounts receivable and related assets customary in the
industry which accounts receivable and related assets are not required
after such sale or transfer to be recorded as assets of the Company on
its consolidated balance sheet in accordance with GAAP, the uncollected
balance of amounts due in respect of such accounts
58
receivable and interests therein not to exceed, together with
Indebtedness under any Receivables Facility incurred under clause (1)
above, $30.0 million at any time outstanding; and
(17) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (17), not to exceed $15.0 million.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (1) through (17) above
or is entitled to be incurred pursuant to Section 4.09(a), the Company will be
permitted to classify such item of Indebtedness on the date of its incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated under
this Indenture will initially be deemed to have been incurred on such date in
reliance on the exception provided by clause (1) of the definition of Permitted
Debt above. The accrual of interest, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of preferred
stock as Indebtedness due to a change in accounting principles, and the payment
of dividends on Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09; provided, in each such case, that the amount of any such accrual,
accretion or payment is included in Fixed Charges of the Company as accrued.
Notwithstanding any other provision of this Section 4.09, the maximum
amount of Indebtedness that the Company or any Restricted Subsidiary may incur
pursuant to this Section 4.09 shall not be deemed to be exceeded solely as a
result of fluctuations in exchange rates or currency values.
For purposes of determining compliance with any U.S. dollar-denominated
restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency will be
calculated based on the relevant currency exchange rate in effect on the date
such Indebtedness was incurred, in the case of term debt, or first committed, in
the case of revolving credit debt; provided, that (1) the U.S. dollar-equivalent
principal amount of any such Indebtedness outstanding or committed on the date
of this Indenture will be calculated based on the relevant currency exchange
rate in effect on the date of this Indenture, and (2) if such Indebtedness is
incurred to refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable U.S. dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated restriction will be
deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced. The principal amount of any Indebtedness incurred
to refinance other Indebtedness, if incurred in a different currency from the
Indebtedness being refinanced, will be calculated based on the currency exchange
rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
59
(2) the principal amount of the Indebtedness, in the case of
any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a
Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date
of determination; and
(B) the amount of the Indebtedness of the other
Person.
Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or Equity Interests issued or
sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents. For purposes of this provision, each of the
following shall be deemed to be cash:
(A) any liabilities, as shown on the Company's most
recent consolidated balance sheet, of the Company or any
Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes
or any Note Guarantee) that are assumed by the transferee or
purchaser, or a third party on behalf of the transferor or
purchaser of any such assets, pursuant to a customary
assumption agreement that releases the Company or such
Restricted Subsidiary from such liability;
(B) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from
such transferee that are converted by the Company or such
Restricted Subsidiary into cash within 60 days of receipt by
the Company or such Restricted Subsidiary, to the extent of
the cash received in that conversion; and
(C) any stock or assets of the kind referred to in
clauses (2) or (4) of the next paragraph of this Section 4.10.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company (or the applicable Restricted Subsidiary, as the case may be)
may apply such Net Proceeds at its option; provided, that any stock or assets of
the kind referred to in clauses (2) and (4) below deemed to be cash pursuant to
Section 4.10(a) above will be deemed applied pursuant to clauses (2) and (4)
below, as applicable, to the extent such stock or assets are used in the
business and are not sold within such 365-day period for consideration of the
kind described in clauses (2)(A) and (2)(B) of Section 4.10(a) above:
(1) to repay (i) Senior Debt and, if the Senior Debt repaid is
revolving credit Indebtedness, to correspondingly reduce commitments
with respect thereto or (ii) any Indebtedness of a non-guarantor
Restricted Subsidiary only if the assets sold were of such
non-guarantor Restricted Subsidiary (other than Indebtedness owed to
the Company or an Affiliate and other than Disqualified Stock);
60
(2) to acquire (i) all or substantially all of the assets of
another Permitted Business or (ii) any Capital Stock of another
Permitted Business if, after giving effect to any such acquisition of
Capital Stock, the Permitted Business is or becomes a Restricted
Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire any property or assets (other than Indebtedness
and Capital Stock) to be used by the Company or a Restricted Subsidiary
in a Permitted Business; or
(5) to acquire from a Person other than the Company or any of
its Subsidiaries Capital Stock of a Restricted Subsidiary which
constitutes a minority interest in such Restricted Subsidiary.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the second paragraph of this Section 4.10 will constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million,
within ten days thereof, the Company will make an Asset Sale Offer to all
Holders and all holders of other Indebtedness that ranks equally with the Notes
containing provisions similar to those set forth in this Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to purchase
the maximum principal amount of Notes and such other equally ranking
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer will be equal to 100% of the principal amount plus
accrued and unpaid interest and Special Interest, if any, to, but not including,
the date of purchase, and will be payable in cash (subject to the right of
Holders on the relevant record date to receive interest on the relevant interest
payment date). If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
other equally ranking Indebtedness tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes and such other
equally ranking Indebtedness to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset
at zero.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
Section 3.10 or this Section 4.10, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under Section 3.10 or this Section 4.10 by virtue of such
compliance.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate of the Company (each, an "Affiliate Transaction"), unless:
61
(1) the Affiliate Transaction is on terms taken as a whole
that are no less favorable to the Company or the relevant Restricted
Subsidiary than those available in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $5.0 million, a resolution of the
Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with clause (1) of this Section 4.11(a) and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the Company
(or, if there is only one disinterested director of the
Company's Board of Directors, such disinterested director);
and
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $12.0 million, such Affiliate
Transaction or series of related Affiliate Transactions has
been approved by a majority of the disinterested directors
(or, if there is only one disinterested director on the
Company's Board of Directors, such disinterested director) or
the Company's Board of Directors will have received an opinion
as to the fairness to the Company or such Subsidiary of such
Affiliate Transaction from a financial point of view issued by
an accounting, appraisal or investment banking firm that is
not an Affiliate of any party to such Affiliate Transaction
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11(a):
(1) any employment agreement, employee benefit plan, officer
or director indemnification agreement or any similar arrangement or
other compensation arrangement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business and
payments pursuant thereto;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company solely
because the Company owns, directly or through a Restricted Subsidiary,
an Equity Interest in, or controls, such Person;
(4) payment of reasonable fees paid to, and indemnity provided
on behalf of, officers, directors, employees or consultants of the
Company and its Subsidiaries;
(5) any issuance of Equity Interests (other than Disqualified
Stock) of the Company to Affiliates of the Company;
(6) payments or distributions that do not violate Section
4.07;
(7) payment of fees not in excess of $600,000 per annum plus
customary out-of-pocket expenses pursuant to the Management Services
Agreement;
(8) loans or advances to employees in the ordinary course of
business not to exceed $2.0 million in the aggregate at any one time
outstanding;
62
(9) any issuance of securities or other payments pursuant to
employment arrangements, stock options and stock ownership plans
approved by the Board of Directors;
(10) the grant of stock options, restricted stock, stock
appreciation rights, phantom stock awards or similar rights to
employees, directors and consultants approved by the Board of
Directors;
(11) any redemption of Capital Stock held by current or former
employees, directors or consultants at the time of their death,
disability, termination of employment or departure from the Board of
Directors for not in excess of Fair Market Value;
(12) contracts or agreements with, and payments by the Company
or any of its Restricted Subsidiaries to, Goldman, Sachs & Co. or any
of its Affiliates in connection with any financial advisory, financing,
underwriting or placement services or any other investment banking,
banking or similar services, which payments are approved by a majority
of the Board of Directors in good faith;
(13) transactions pursuant to or contemplated by the
Stockholder Agreement as in effect on the date of the Acquisition as
the same may be amended from time to time in any manner no less
favorable to the Holders;
(14) transactions pursuant to any agreement in effect on the
date of this Indenture as the same may be amended from time to time in
any manner not materially less favorable to the Holders;
(15) Permitted Payments to Parent or payments permitted under
clauses (5), (6) and (9) of Section 4.07(b);
(16) transactions in connection with the Credit Agreement;
(17) transactions involving the sale of inventory or services
in the ordinary course of business from the Company or its Subsidiaries
to Affiliates of Principals; and
(18) transactions contemplated by the Merger Agreement.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind (other than Permitted Liens) securing
Indebtedness upon any of their property or assets, now owned or hereafter
acquired, unless all payments due under this Indenture and the Notes are secured
on an equal and ratable basis with the obligations so secured until such time as
such obligations are no longer secured by a Lien.
Section 4.13 Business Activities.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
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Section 4.14 Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or
other existence of each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from
time to time) of the Company or any such Subsidiary; and
(2) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however, that
the Company shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any
of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the
Holders.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have
the right to require the Company to make an offer (a "Change of Control Offer")
to each Holder to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of that Holder's Notes at a purchase price in cash equal to
101% of the aggregate principal amount of Notes repurchased plus accrued and
unpaid interest and Special Interest, if any, on the Notes repurchased to, but
not including, the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date (the "Change of Control Payment"). Within 30 days following any Change of
Control or, at the Company's option, prior to the completion of such Change of
Control event but only after such event is publicly announced, the Company will
mail a notice to each Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase Notes on the Change
of Control Payment Date and stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.15 and that all Notes tendered will be accepted for
payment;
(2) the purchase price and the purchase date, which shall be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant
to a Change of Control Offer will be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" attached to
the Notes completed, or transfer by book-entry transfer, to the Paying
Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of
64
Control Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof.
In the case of a Change of Control Notice sent prior to the applicable
Change of Control event pursuant to Section 4.15(a) above, the Change of Control
Offer will be irrevocable, subject only to the completion of the applicable
Change of Control event. The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with the repurchase of the Notes as a result of a Change in Control. To the
extent that the provisions of any securities laws or regulations conflict with
the provisions of Sections 3.10 or 4.15, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under Section 3.10 or this Section 4.15 by virtue of
such compliance.
(b) On the Change of Control Payment Date, the Company will, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
The Paying Agent will promptly mail to each Holder properly tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any, provided that each new Note will be equal to $1,000 or an
integral multiple of $1,000. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
Prior to complying with any of the provisions of this Section 4.15, but
in any event within 90 days following a Change of Control, the Company will
either repay all outstanding Senior Debt or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Debt to permit the
repurchase of Notes required by this Section 4.15.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Section 4.15 and Section 3.10 and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) notice of redemption has
been given pursuant to Section 3.07, unless and until there is a default in
payment of the applicable redemption price.
65
Section 4.16 No Layering of Debt.
The Company will not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is contractually subordinate
or junior in right of payment to any Senior Debt of the Company and
contractually senior in right of payment to the Notes. No Guarantor will incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness
that is contractually subordinate or junior in right of payment to the Senior
Debt of such Guarantor and contractually senior in right of payment to such
Guarantor's Note Guarantee. No such Indebtedness will be considered to be senior
by virtue of being secured on a first or junior priority basis and Indebtedness
which has different security or different priorities on the same security will
not be deemed subordinate in right of payment to Secured Indebtedness due to
such differences.
Section 4.17 Payments for Consent.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this Indenture
or the Notes unless such consideration is offered to be paid and is paid to all
Holders that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
Section 4.18 Guarantees.
(a) Upon consummation of the Acquisition, the Company will cause each
Person identified in clause (1) of the definition of "Guarantors" herein to
become a Guarantor as provided in the Escrow and Security Agreement; and
(b) If the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Subsidiary after the date of this Indenture, then that
newly acquired or created Domestic Subsidiary will become a Guarantor and the
Company will cause each such Guarantor to execute a Note Guarantee pursuant to a
supplemental indenture and deliver an Opinion of Counsel reasonably satisfactory
to the Trustee within 30 Business Days of the date on which it was acquired or
created or the date on which it becomes a Domestic Restricted Subsidiary;
provided that this Section 4.18 does not apply to (i) any Subsidiary of the
Company that has properly been designated an Unrestricted Subsidiary under
Section 4.19 and for so long as it continues to constitute an Unrestricted
Subsidiary and (ii) any Subsidiary not required to become a Guarantor under the
Credit Facilities. The form of such Note Guarantee is attached as Exhibit E
hereto.
Section 4.19 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments under
Section 4.07 or under one or more clauses of the definition of Permitted
Investments, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.
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Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of a resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07. If, at
any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09, the Company will be in default of
such covenant. The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company;
provided that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09, calculated
on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be
in existence following such designation.
Section 4.20 Limitation on Ability of Company to Release Funds From Escrow
Account.
Micron Notes Corporation agrees that (i) the terms of the Escrow and
Security Agreement will exclusively control the conditions under which and
procedures pursuant to which the Escrow Property can be released and (ii) it
shall not attempt to release funds from the secured proceeds account except in
accordance with the Escrow and Security Agreement.
Section 4.21 Limitation on Activities of Micron Notes Corporation.
From the date of this Indenture until the consummation of the
Acquisition, Micron Notes Corporation shall take no actions other than those
specifically permitted pursuant to the terms of the Escrow and Security
Agreement related to making the deposit into the Escrow Account and the release
of the funds in connection with the consummation of the Acquisition. Micron
Notes Corporation shall not hold any assets other than the Escrow Account and
the proceeds thereof and shall not become liable for any obligations other than
the Notes and this Indenture and those incidental to its organization and
pursuant to the Escrow and Security Agreement. In connection with the
Acquisition, Micron Notes Corporation shall cause the entity known, on the date
of this Indenture, as Autocam Corporation to execute an Assumption Agreement
substantially in the form attached as Exhibit F hereto.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company will not, directly or indirectly: (i) consolidate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (ii) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, conveyance or other
67
disposition has been made (i) is a corporation organized or
existing under the laws of the United States, any state of the
United States or the District of Columbia; or (ii) is a
partnership or limited liability company organized or existing
under the laws of the United States, any state thereof or the
District of Columbia that has at least one Restricted
Subsidiary that is a corporation organized or existing under
the laws of the United States, any state thereof or the
District of Columbia which corporation becomes a co-issuer of
the Notes pursuant to a supplemental indenture duly and
validly executed by the Trustee;
(2) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this
Indenture and any Registration Rights Agreement pursuant to agreements
reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of
Default exists; and
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition has been
made would, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a).
Upon completion of the disposition of all or substantially all of the
property or assets of the Company and its Restricted Subsidiaries taken as a
whole and satisfaction of the conditions set forth in clauses (1) through (4)
above, the Company will be released from any liability under the Notes and this
Indenture. In addition, the Company will not, directly or indirectly, lease all
or substantially all of the properties and assets of it and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to any other
Person.
This Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the
purpose of reincorporating the Company in another jurisdiction;
(2) any consolidation or merger, or any sale, assignment,
transfer, conveyance, lease or other disposition of assets between or
among the Company and its Guarantors that are both Restricted
Subsidiaries and Domestic Subsidiaries; or
(3) the mergers contemplated by the Merger Agreement or the
Issuer Merger.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company in a transaction that is subject to, and
that complies with the provisions of, Section 5.01, the successor Person formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor Person and not to the Company), and may
exercise every right and power of the Company
68
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; provided, however, that the predecessor Company
shall not be relieved from the obligation to pay the principal of and interest
on the Notes except in the case of a sale of all of the Company's assets in a
transaction that is subject to, and that complies with the provisions of,
Section 5.01.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of interest
on, or Special Interest, if any, with respect to, the Notes, whether or
not prohibited by the subordination provisions of this Indenture;
(2) default in the payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on,
the Notes, whether or not prohibited by the subordination provisions of
this Indenture;
(3) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Sections 5.01;
(4) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes
then outstanding voting as a single class to comply with any of the
other agreements in this Indenture;
(5) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of
this Indenture, if that default:
(A) is caused by a failure to pay principal under any
such instrument at maturity, and such unpaid portion exceeds
$15.0 million individually or, together with the principal
amount of any other such Indebtedness under which there has
been a payment default at maturity, aggregates $15.0 million
or more, and is not paid, or such default is not cured or
waived, within any grace period applicable thereto, unless
such Indebtedness is discharged within 20 days of the Company
or a Restricted Subsidiary becoming aware of such default (a
"Payment Default"); or
(B) results in the acceleration of such Indebtedness
prior to its express maturity, and the principal amount of any
such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated,
aggregates $15.0 million or more;
(6) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments entered by a court or courts of
competent jurisdiction aggregating in excess of $15.0 million or dollar
equivalent, net of amounts covered by insurance, which judgment or
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decree has remained outstanding for a period of 60 days after such
judgment or decree becomes final and nonappealable without being paid,
discharged, waived or stayed;
(7) the Company or any of its Restricted Subsidiaries that is
a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary
pursuant to or within the meaning of the Bankruptcy Code:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become
due;
(8) a court of competent jurisdiction enters an order or
decree under the Bankruptcy Code that:
(A) is for relief against the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary in
an involuntary case;
(B) appoints a custodian of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or
any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary or
for all or substantially all of the property of the Company or
any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant
Subsidiary; or
(C) orders the liquidation of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days;
(9) except as permitted by this Indenture, any Note Guarantee
of a Significant Subsidiary or any two or more Note Guarantors that are
Subsidiaries of the Company that when taken together would constitute a
Significant Subsidiary is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force
and effect, or any Guarantor, or any Person acting on behalf of any
Guarantor that is a Significant Subsidiary or any two or more Note
Guarantors that are Subsidiaries of the Company that when taken
together would constitute a Significant Subsidiary, denies or
disaffirms its obligations under its Note Guarantee;
(10) failure by the Company to comply with any material term
of the Escrow or Security Agreement entered into that is not cured
within 10 days; or
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(11) the Escrow or Security Agreement to be entered into or
any other security document or any Lien purported to be granted thereby
on the Escrow Account or the cash or Governmental Securities therein is
held in any judicial proceeding to be unenforceable or invalid, in
whole or in part, or ceases for any reason (other than pursuant to a
release that is delivered or becomes effective as set forth in this
Indenture) to be fully enforceable and perfected.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (7) or (8) of
Section 6.01, with respect to the Company, any Restricted Subsidiary of the
Company that is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary,
all outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately;
provided that so long as any Indebtedness permitted to be incurred pursuant to
the Credit Facilities is outstanding, such acceleration will not be effective
until the earlier of (1) the acceleration of such Indebtedness under the Credit
Facilities or (2) five Business Days after receipt by the Company of written
notice of such acceleration.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may, on behalf of the Holders of all
of the Notes, rescind an acceleration or waive any existing Default or Event of
Default and its consequences under this Indenture except a continuing Default or
Event of Default in the payment of interest or premium or Special Interest, if
any, on, or the principal of, the Notes.
If an Event of Default occurs on or after June 15, 2009 by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to June 15, 2009
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable, to the extent permitted by law, in an amount, for each of the years
beginning on June 15 of the years set forth below, as set forth below (expressed
as a percentage of the principal amount of the Notes on the date of payment that
would otherwise be due but for the provisions of this sentence):
YEAR PERCENTAGE
- ---- ----------
2004................................................... 110.8750%
2005................................................... 109.7875%
2006................................................... 108.7000%
2007................................................... 107.6125%
2008................................................... 106.5250%
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium and Special
Interest, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium and Special Interest, if any, or interest
on, the Notes (including in connection with an offer to purchase); provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05 Control by Majority.
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders or that may involve the
Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(1) such Holder gives to the Trustee written notice that an
Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) during such 60-day period, Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
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Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium and Special Interest,
if any, and interest on the Note, on or after the respective due dates expressed
in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as Trustee of an express trust against the Company for the whole amount of
principal of, premium and Special Interest, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium and Special Interest, if any, and interest, ratably,
without preference or priority of any kind,
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according to the amounts due and payable on the Notes for principal,
premium and Special Interest, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee will examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(2) the Trustee will not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
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(3) the Trustee will not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend
or risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and will not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee reasonable
indemnity or security against the losses, liabilities and expenses that might be
incurred by it in compliance with such request or direction.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Trustee (if this Indenture has been qualified under
the TIA) or resign. Any Agent may do the same with like rights and duties. The
Trustee is also subject to Sections 7.10 and 7.11.
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Section 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee will mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium or Special
Interest, if any, or interest on, any Note, the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
Section 7.06 Reports by Trustee to Holders.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also will comply
with TIA Section 313(b)(2). The Trustee will also transmit by mail all reports
as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the Holders
will be mailed by the Trustee to the Company and filed by the Trustee with the
SEC and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company will promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation will not be limited by any law on compensation of a
Trustee of an express trust. The Company will reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company and the Guarantors will jointly and severally indemnify
the Trustee against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company and the Guarantors (including this Section 7.07)
and defending itself against any claim (whether asserted by the Company, the
Guarantors, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the
extent any such loss, liability or expense may be attributable to its negligence
or bad faith. The Trustee will notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
will not relieve the Company or any of the Guarantors of their
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obligations hereunder. The Company or such Guarantor will defend the claim and
the Trustee will cooperate in the defense. The Trustee may have separate counsel
and the Company will pay the reasonable fees and expenses of such counsel.
Neither the Company nor any Guarantor need pay for any settlement made without
its consent, which consent will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee.
(d) To secure the Company's and the Guarantors' payment obligations in
this Section 7.07, the Trustee will have a Lien prior to the Notes on all money
or property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien will survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.
(e) When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(7) or (8) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Code.
(f) The Trustee will comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of a
majority in aggregate principal amount of the then outstanding Notes may remove
the Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under the
Bankruptcy Code;
(3) a custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 will continue for the benefit of the
retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
Trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, elect to have
either Section 8.02 or 8.03 be applied to all outstanding Notes and all
obligations of the Guarantors upon compliance with the conditions set forth
below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.02, the Company and each of the Guarantors will, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from their obligations with respect to all
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outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including the Note Guarantees), which will thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 and the other Sections of
this Indenture referred to in clauses (1) and (2) below, and to have satisfied
all their other obligations under such Notes, the Note Guarantees and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions which will survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Special Interest, if any, on, such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02;
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith; and
(4) this Section 8.02.
Subject to compliance with this Article 8, the Company may exercise its
option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.03, the Company and each of the Guarantors will, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be released
from each of their obligations under the covenants contained in Sections 4.03,
4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19,
4.20 and 4.21 hereof and clause (4) of Section 5.01 with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes will
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes will not be deemed outstanding for accounting purposes). For this purpose,
Covenant Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply will not constitute a Default or an Event of Default under
Section 6.01, but, except as specified above, the remainder of this Indenture
and such Notes and Note Guarantees will be unaffected thereby. In addition, upon
the Company's exercise under Section 8.01 of the option applicable to this
Section 8.03, subject to the satisfaction of the conditions set forth in Section
8.04, Sections 6.01(3) through 6.01(6) will not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03:
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(1) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm, or firm of independent
public accountants, to pay the principal of, and interest and premium
and Special Interest, if any, and on, the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date,
as the case may be, and the Company must specify whether the Notes are
being defeased to such stated date for payment or to a particular
redemption date;
(2) in the case of an election under Section 8.02, the Company
must deliver to the Trustee an Opinion of Counsel confirming that:
(A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling; or
(B) since the date of this Indenture, there has been
a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(3) in the case of an election under Section 8.03, the Company
must deliver to the Trustee an Opinion of Counsel confirming that the
Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default under clauses (1) or (2) of
Section 6.01 has occurred and is continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit) and the deposit will not result
in a breach or violation of, or constitute a default under, any
material agreement or other instrument (other than this Indenture) to
which the Company or any Guarantor is a party or by which the Company
or any Guarantor is bound;
(5) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; and
(6) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance
have been complied with.
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Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 in respect of the outstanding Notes will be
held in trust and applied by the Trustee, in accordance with the provisions of
such Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium and Special Interest, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium or Special
Interest, if any, or interest on, any Note and remaining unclaimed for two years
after such principal, premium or Special Interest, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) will be discharged from such trust; and the Holder of such
Note will thereafter be permitted to look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as Trustee thereof, will
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's and the Guarantors' obligations under this Indenture and the Notes
and the Note Guarantees will be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03, as the case may be; provided, however, that, if the Company makes
any payment of principal of, premium or Special Interest, if any, or interest
on, any Note following the reinstatement of its obligations, the Company will be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.
Notwithstanding Section 9.02 of this Indenture, without the consent of
any Holder, the Company, the Guarantors and the Trustee may amend or supplement
this Indenture or the Notes or the Note Guarantees:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders and Note Guarantees by a
successor to the Company or such Guarantor pursuant to Article 5 or
Article 11;
(4) to make any change that would provide any additional
rights or benefits to the Holders, including adding a Guarantor, or
that does not adversely affect the legal rights hereunder of any such
Holder in any material respect;
(5) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Note Guarantees
or the Notes to any provision of the "Description of Notes" section of
the Company's Offering Circular, to the extent that such provision in
that "Description of Notes" was intended to be a verbatim recitation of
a provision of this Indenture, the Note Guarantees or the Notes;
(7) to provide for the issuance of Additional Notes and
Exchange Notes in accordance with the limitations set forth in this
Indenture as of the date hereof;
(8) to allow any Guarantor to execute a supplemental indenture
and/or a Note Guarantee with respect to the Notes; or
(9) to provide for the release of the Company or any Guarantor
from any of its obligations under the Notes, the Additional Notes, the
Exchange Notes the Note Guarantees or this Indenture in accordance with
the terms of this Indenture.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in
Sections 7.02 and 13.04, the Trustee will join with the Company and the
Guarantors in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee will
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders.
Except as provided below in Sections 9.01 and 9.02, the Company and the
Trustee may amend or supplement this Indenture (including, without limitation,
Section 3.10, 4.10 and 4.15) and the Notes and
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the Note Guarantees with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes and, subject to Sections 6.04 and
6.07, any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium or Special Interest, if any,
or interest on, the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes or the Note Guarantees may be waived with the consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Notes, (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes). Section
2.08 hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
In addition, any amendment to, or waiver of, the provisions of this
Indenture relating to subordination that adversely affects the rights of the
Holders will require the consent of the Holders of at least 75% in aggregate
principal amount of Notes then outstanding.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 7.02, the Trustee will join with
the Company and the Guarantors in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture.
It is not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof. To the extent Holders are required to provide signatures
pursuant to this Article 9, such signatures may be electronic.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company will mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, will not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes or the Note Guarantees. However,
without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the
Notes (except as provided above with respect to Sections 3.10, 4.10 and
4.15);
(3) reduce the rate of or change the time for payment of
interest, on any Note;
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(4) waive a Default or Event of Default in the payment of
principal of, or premium or Special Interest, if any, or interest on,
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
then outstanding Notes and a waiver of the payment default that
resulted from such acceleration);
(5) make any Note payable in money other than that stated in
the Notes;
(6) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders to
receive payments of principal of, or interest or premium or Special
Interest, if any, on, the Notes;
(7) waive a redemption payment with respect to any Note (other
than a payment required by Sections 3.10, 4.10 or 4.15);
(8) release any Guarantor from any of its obligations under
its Note Guarantee or this Indenture, except in accordance with the
terms of this Indenture; or
(9) make any change in the preceding amendment and waiver
provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Company
may not sign an amended or supplemental indenture until the Board of Directors
of the Company approves it. In executing any amended or supplemental indenture,
the Trustee will be entitled to receive and (subject to Section 7.01) will be
fully protected in relying upon, in
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addition to the documents required by Sections 13.04 and 7.02, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture is authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by the Notes is subordinated in right of payment, to
the extent and in the manner provided in this Article 10, to the prior payment
in full of all Senior Debt (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.
Section 10.02 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(1) holders of Senior Debt will be entitled to receive payment
in full of all Obligations due in respect of such Senior Debt
(including interest after the commencement of any bankruptcy proceeding
at the rate specified in the applicable Senior Debt whether or not an
allowable claim in any such proceeding) before the Holders will be
entitled to receive any payment with respect to the Notes (except that
Holders may receive and retain Permitted Junior Securities and payments
made from any defeasance trust created pursuant to Article 8); and
(2) until all Obligations with respect to Senior Debt (as
provided in clause (1) above) are paid in full, any distribution to
which Holders would be entitled but for this Article 10 will be made to
holders of Senior Debt (except that Holders may receive and retain
Permitted Junior Securities and payments made from any defeasance trust
created pursuant to Article 8), as their interests may appear.
Section 10.03 Default on Designated Senior Debt.
(a) The Company may not make any payment in respect of the Notes (other
than Permitted Junior Securities and payments made from any defeasance trust
created pursuant to Article 8) if:
(1) payment default on Designated Senior Debt occurs and is
continuing; or
(2) any other default occurs and is continuing on any series
of Designated Senior Debt that permits holders of that series of
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of such default (a "Payment Blockage Notice") from
the holders of any Designated Senior Debt. If the Trustee receives any
such Payment Blockage Notice, no subsequent Payment Blockage Notice
will be effective for purposes of this Section 10.03 unless and until
(A) at least 360 days have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice and (B) all scheduled
payments of principal, premium and Special Interest, if any, and
interest on the Notes that have come due have been paid in full in
cash.
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No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee will be, or will be made,
the basis for a subsequent Payment Blockage Notice unless such default has have
been waived for a period of not less than 90 days.
(b) The Company may and will resume payments on and distributions in
respect of the Notes and may acquire them upon the earlier of:
(1) in the case of a payment default, upon the date upon which
such default is cured or waived, or
(2) in the case of a nonpayment default, upon the earlier of
the date on which such nonpayment default is cured or waived or 179
days after the date on which the applicable Payment Blockage Notice is
received, unless the maturity of any Designated Senior Debt has been
accelerated or if any Payment Default then exists on Designated Senior
Debt,
if this Article 10 otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.04 Acceleration of Notes.
If payment of the Notes is accelerated because of an Event of Default,
the Company will promptly notify holders of Senior Debt of the acceleration.
Section 10.05 When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment of any
Obligations with respect to the Notes (other than Permitted Junior Securities
and payments made from any defeasance trust created pursuant to Article 8
hereof) at a time when the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by Section 10.03 hereof, such payment
will be held by the Trustee or such Holder, in trust for the benefit of, and
will be paid forthwith over and delivered, upon written request, to, the holders
of Senior Debt as their interests may appear or their Representative under the
agreement, indenture or other document (if any) pursuant to which Senior Debt
may have been issued, as their respective interests may appear, for application
to the payment of all Obligations with respect to Senior Debt remaining unpaid
to the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only those obligations on the part of the Trustee as are specifically
set forth in this Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt will be read into this Indenture against
the Trustee. The Trustee will not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and will not be liable to any such holders if the
Trustee pays over or distributes to or on behalf of Holders or the Company or
any other Person money or assets to which any holders of Senior Debt are then
entitled by virtue of this Article 10, except if such payment is made as a
result of the willful misconduct or gross negligence of the Trustee.
Section 10.06 Notice by Company.
The Company will promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this
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Article 10, but failure to give such notice will not affect the subordination of
the Notes to the Senior Debt as provided in this Article 10.
Section 10.07 Subrogation.
After all Senior Debt is paid in full and until the Notes are paid in
full, Holders will be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article 10 to holders of Senior
Debt that otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on the Notes.
Section 10.08 Relative Rights.
This Article 10 defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture will:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of, premium and interest and Special Interest, if any, on, the Notes in
accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt;
or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders.
If the Company fails because of this Article 10 to pay principal of,
premium or interest or Special Interest, if any, on, a Note on the due date, the
failure is still a Default or Event of Default.
Section 10.09 Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes may be impaired by any act or failure to
act by the Company or any Holder or by the failure of the Company or any Holder
to comply with this Indenture.
Section 10.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article 10, the Trustee and the Holders will be entitled to rely upon
any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
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Section 10.11 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee will not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee has received at its Corporate
Trust Office at least five Business Days prior to the date of such payment
written notice of facts that would cause the payment of any Obligations with
respect to the Notes to violate this Article 10. Only the Company or a
Representative may give the notice. Nothing in this Article 10 will impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.07.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
Section 10.12 Authorization to Effect Subordination.
Each Holder, by the Holder's acceptance thereof, authorizes and directs
the Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 10, and
appoints the Trustee to act as such Holder's attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.09 at least
30 days before the expiration of the time to file such claim, the
Representatives are hereby authorized to file an appropriate claim for and on
behalf of the Holders.
Section 10.13 Amendments.
The provisions of this Article 10 may not be amended or modified
without the written consent of the holders of all Senior Debt. In addition, any
amendment to, or waiver of, the provisions of this Article 10 that adversely
affects the rights of the Holders will require the consent of the Holders of at
least 75% in aggregate principal amount of Notes then outstanding.
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium and Special Interest, if any,
and interest on, the Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if any,
if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise.
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Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Note Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
Section 11.02 Subordination of Note Guarantee.
The Obligations of each Guarantor under its Note Guarantee pursuant to
this Article 11 will be junior and subordinated to the Senior Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to Senior
Debt of the Company. For the purposes of the foregoing sentence, the Trustee and
the Holders will have the right to receive and/or retain payments by any of the
Guarantors only at such times as they may receive and/or retain payments in
respect of the Notes pursuant to this Indenture, including Article 10.
Section 11.03 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Note Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor will be limited to the maximum amount that will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution
89
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.04 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 11.01, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit D hereto will be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 11.01 will remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted Subsidiaries
creates or acquires any Domestic Subsidiary after the date of this Indenture, if
required by Section 4.18, the Company will cause such Domestic Subsidiary to
comply with the provisions of Section 4.18 and this Article 11, to the extent
applicable.
Section 11.05 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Sections 11.05 and 11.06(a) hereof, no
Guarantor may sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person, other than the Company or
another Guarantor, unless:
(1) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(2) either:
(a) subject to Sections 11.05 and 11.06(a) hereof,
the Person acquiring the property in any such sale or disposition or
the Person formed by or surviving any such consolidation or merger
unconditionally assumes all the obligations of that Guarantor under
this Indenture, its Note Guarantee and any Registration Rights
Agreement on the terms set forth herein or therein, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to
the Trustee; or
(b) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of
this Indenture, including without limitation, Section 4.10.
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In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person will succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5, and notwithstanding clauses
2(a) and (b) above, nothing contained in this Indenture or in any of the Notes
will prevent any consolidation or merger of a Guarantor with or into the Company
or another Guarantor, or will prevent any sale or conveyance of the property of
a Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
Section 11.06 Releases.
(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the Capital
Stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) the Company or a Restricted Subsidiary
of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the Capital
Stock of such Guarantor) or the corporation acquiring the property (in the event
of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.10, the
Trustee will execute any documents reasonably required in order to evidence the
release of any Guarantor from its obligations under its Note Guarantee.
(b) Upon designation of any Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture, such Guarantor will be released and
relieved of any obligations under its Note Guarantee.
(c) Upon Legal Defeasance in accordance with Article 8 or satisfaction
and discharge of this Indenture in accordance with Article 12, each Guarantor
will be released and relieved of any obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee as provided in this Section 11.06 will remain liable for the full
amount of principal of and interest and premium and Special Interest, if any, on
the Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 11.
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ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except
lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited in trust
and thereafter repaid to the Company, have been delivered to the
Trustee for cancellation; or
(b) all Notes that have not been delivered to the
Trustee for cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, without consideration
of any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium and Special Interest, if any, and accrued
interest to the date of maturity or redemption;
(2) no Default or Event of Default under clauses (1) or (2) of
Section 6.01 has occurred and is continuing on the date of such deposit
(other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit) and the deposit will not result
in a breach or violation of, or constitute a default under, any other
instrument to which the Company or any Guarantor is a party or by which
the Company or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be paid
all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or on the redemption date, as the case
may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 12.01, the provisions of Sections 12.02 and 8.06 will
survive. In addition, nothing in this Section 12.01 will be deemed to discharge
those provisions of Section 7.07, that, by their terms, survive the satisfaction
and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the
Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and
92
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium and
Special Interest, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and any Guarantor's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.01; provided that (a) if the Company has made any payment of
principal of, premium or Special Interest, if any, or interest on, any Notes
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent and (b) the
Trustee or Paying Agent shall return all such money and Government Securities to
the Company promptly after receiving a request therefore at any time, if such
reinstatement of the Company's obligations has occurred and continues to be in
effect.
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties will control.
Section 13.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or by
first class mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
c/o Autocam Corporation/Micron Notes Corporation
4070 East Paris Avenue Southeast
Kentwood, Michigan 49512
Attention: Chief Financial Officer
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004-1980
Attention: Jeffrey Bagner, Esq.
If to the Trustee:
J.P. Morgan Trust Company, National Association
227 West Monroe Street, 26th Floor
Facsimile No.: (312) 267-5208
Attention: Benita A. Pointer, Institutional Trust Services
93
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication will also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it will
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it will mail
a copy to the Trustee and each Agent at the same time.
Section 13.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 13.05) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 13.05) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) must comply with the provisions of TIA
Section 314(e) and must include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
94
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, will have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note
Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. The waiver may not be effective to
waive liabilities under the federal securities laws.
Section 13.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10 Successors.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 11.06.
Section 13.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
95
Section 13.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 13.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and will in no
way modify or restrict any of the terms or provisions hereof.
(Signatures Pages Follow)
96
SIGNATURES
Dated as of June 10, 2004 MICRON NOTES CORPORATION
By: /s/ Lauren Cabral
-------------------------------------
Name: Lauren Cabral
Title: Assistant Secretary
J.P. MORGAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Benita A. Pointer
-------------------------------------
Name: Benita A. Pointer, CCTS
Title: Assistant Vice President
EXHIBIT A
[Face of Note]
CUSIP/CINS ____________
10.875% Senior Subordinated Notes due 2014
No. ___ $____________
MICRON NOTES CORPORATION
promises to pay to CEDE & CO. or registered assigns,
the principal sum of __________________________________________________________
DOLLARS on _____________, 20___.
Interest Payment Dates: _________ and ___________
Record Dates: __________ and __________
Dated: _______________, 200_
MICRON NOTES CORPORATION
By:_________________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: ________________________________
Authorized Signatory
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[Back of Note]
10.875% Senior Subordinated Notes due 2014
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. Micron Notes Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
at 10.875% per annum from ________________, 20__ until maturity and shall
pay the Special Interest, if any, payable pursuant to any Registration
Rights Agreement referred to below. The Company will pay interest and
Special Interest, if any, semi-annually in arrears on June 15 and December
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"). Interest on
the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided further
that the first Interest Payment Date shall be _____________. The Company
will pay interest (including post-petition interest in any proceeding
under the Bankruptcy Code) on overdue installments of interest and Special
Interest, if any, (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons
who are registered Holders at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium and
Special Interest, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of interest and
Special Interest, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Special Interest,
if any, on, all Global Notes and all other Notes the Holders of which will
have provided wire transfer instructions to the Company or the Paying
Agent. Such payment will be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, J.P. Morgan Trust
Company, National Association, the Trustee under the Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated
as of June 10, 2004 (the "Indenture") among the Company and the Trustee.
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the TIA.
A1-2
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling. Except to the extent provided in the Escrow and Security
Agreement dated as of June 10, 2004 (the "Escrow and Security Agreement"),
among the Company, the Trustee and J.P. Morgan Trust Company, National
Association as escrow agent, the Notes are unsecured obligations of the
Company. The Indenture does not limit the aggregate principal amount of
Notes that may be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) At any time prior to June 15, 2007, the Company may, on any one or
more occasions, redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture (calculated giving effect to any issuance of
Additional Notes) at a redemption price of 110.875% of the principal amount,
plus accrued and unpaid interest and Special Interest, if any, to, but not
including, the redemption date (subject to the right of Holders on any relevant
interest record date to receive interest on the relevant interest payment date),
in an amount up to the net cash proceeds of one or more Equity Offerings (1) by
the Company or (2) by a Parent to the extent the net cash proceeds thereof are
contributed to the Company or used to purchase Qualified Capital Stock from the
Company; provided that: (i) at least 65% of the aggregate principal amount of
Notes originally issued under this Indenture (calculated giving effect to any
issuance of Additional Notes and excluding Notes held by the Company and its
Subsidiaries) remains outstanding immediately after the occurrence of such
redemption; and (ii) the redemption occurs within 60 days of the date of the
closing of such Equity Offering.
(b) Except pursuant to the preceding paragraphs, the Notes will not be
redeemable at the Company's option prior to June 15, 2009.
(c) On or after June 15, 2009, the Company may redeem all or a part of the
Notes upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Special Interest, if any, on the Notes redeemed,
to, but not including, the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of the years indicated below, subject
to the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
- --------------------- ----------
2009................. 105.438%
2010................. 103.625%
2011................. 101.813%
2012 and thereafter.. 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(6) MANDATORY REDEMPTION.
Except as described in paragraph 7, the Company is not required to make
mandatory redemption or sinking fund payments with respect to the Notes.
A1-3
(7) SPECIAL MANDATORY REDEMPTION.
(a) The Escrow Property, in an aggregate amount of $138,368,013,
representing (i) the proceeds from the issuance and sale of the Notes net of
underwriting fees in the amount of $3,764,414, (ii) 50.0% of the aggregate
underwriting discount received by the Initial Purchasers in connection with the
offering of the Notes in the amount of $1,882,207 and (iii) an amount equal to
$3,362,420 contributed by Micron Notes Corporation, will be held by the Trustee,
in its capacity as Escrow Agent, in the Escrow Account pursuant to the Escrow
and Security Agreement. The Escrow Property will be invested as provided in the
Escrow and Security Agreement.
(b) In addition to any payments required by Sections 4.10 and 4.15, if the
conditions to release of the Escrow Property to Micron Notes Corporation and to
any other party entitled thereto in connection with the consummation of the
Acquisition, which are set forth in Section I.3(b) of the Escrow and Security
Agreement, have not been satisfied on or prior to June 30, 2003 (the
"Deadline"), Micron Notes Corporation will redeem all of the outstanding Notes
on July 15, 2004, pursuant to the terms of the Escrow and Security Agreement, at
a redemption price equal to 97.777% of the aggregate principal amount of Notes,
plus accrued and unpaid interest, and the amount of the original issue discount
amortized from June 10, 2004, to but not including July 15, 2004; provided,
however, that the Deadline may be extended one time by Micron Notes Corporation
to a date not later than August 16, 2004, provided that on such extension date
Micron Notes Corporation deposits with the Escrow Agent an amount that, together
with the amount set forth in Section 3.09(a), is sufficient to redeem in cash
the Notes, in whole and not in part, at a redemption price equal to 97.777% of
the aggregate principal amount of the Notes, plus accrued and unpaid interest,
and the amount of the original issue discount amortized from June 10, 2004 to,
but not including, August 30, 2004; provided, further that if the Merger
Agreement is terminated at any time prior to August 16, 2004, Micron Notes
Corporation will redeem all of the outstanding Notes within ten Business Days of
such termination, at a redemption price equal to 97.777% of the aggregate
principal amount of the Notes, plus accrued and unpaid interest, and the amount
of the original issue discount amortized from June 10, 2004 to, but not
including, such date of redemption.
(c) Immediately upon receipt by the Paying Agent of the Escrow Property,
the Trustee will notify the Holders of the date fixed for special mandatory
redemption pursuant to this paragraph 7.
(8) REPURCHASE AT THE OPTION OF THE HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder will have the
right to require the Company to make an offer (a "Change of Control Offer") to
each Holder to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of that Holder's Notes at a purchase price in cash equal to
101% of the aggregate principal amount of Notes repurchased plus accrued and
unpaid interest and Special Interest, if any, on the Notes repurchased to, but
not including, the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date (the "Change of Control Payment"); provided that the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) a
third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in Section 4.15 and
Section 3.10 of the Indenture and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) notice of redemption has
been given pursuant to Section 3.07 of the Indenture, unless and until there is
a default in payment of the applicable redemption price. Within 30 days
following any Change of Control or, at the Company's option, prior to the
completion of such Change of Control event but only after such event is publicly
announced, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes on the Change of Control Payment Date as required by the
Indenture.
A1-4
(b) If the Company or a Restricted Subsidiary of the Company consummates
any Asset Sales, within ten days of each date on which the aggregate amount of
Excess Proceeds exceeds $15.0 million, the Company will make an Asset Sale Offer
to all Holders and all Holders of other Indebtedness that is pari passu with the
Notes containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum principal amount of Notes and such other pari passu
Indebtedness that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer will be equal to 100% of the principal amount plus
accrued and unpaid interest and Special Interest, if any, to, but not including,
the date of purchase, and will be payable in cash (subject to the right of
Holders on the relevant record date to receive interest on the relevant interest
payment date). If any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other
pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Holders that are subject of an offer to purchaser will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" attached to the Notes.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address, except
that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction or discharge of the Indenture. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed.
(10) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register
the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes or the Note Guarantees may be
amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class, and any
existing Default or Event or Default or compliance with any provision of
the Indenture or the Notes or the Note Guarantees may be waived with the
consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes including Additional Notes, if any, voting as a
single class. Without the consent of any Holder of a Note, the Indenture
or the Notes or the Note Guarantees may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for
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uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's or a Guarantor's obligations
to Holders and Note Guarantees in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to
the Holders or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under
the TIA, to conform the text of the Indenture or the Notes to any
provision of the "Description of Notes" section of the Company's Offering
Circular dated May 26, 2004, relating to the initial offering of the
Notes, to the extent that such provision in that "Description of Notes"
was intended to be a verbatim recitation of a provision of the Indenture,
the Note Guarantees or the Notes, to provide for the issuance of
Additional Notes and Exchange Notes in accordance with the limitations set
forth in the Indenture, to allow any Guarantor to execute a supplemental
indenture to the Indenture and/or a Note Guarantee with respect to the
Notes, or to provide for the release of the Company or any Guarantor from
any of its obligations under the Notes, the Additional Notes, the Exchange
Notes the Note Guarantees or this Indenture in accordance with the terms
of this Indenture.
(13) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Special Interest,
if any, with respect to, the Notes, whether or not prohibited by the
subordination provisions of this Indenture; (ii) default in the payment
when due (at maturity, upon redemption or otherwise) of the principal of,
or premium, if any, on, the Notes, whether or not prohibited by the
subordination provisions of this Indenture; (iii) failure by the Company
or any of its Restricted Subsidiaries to comply with the provisions of
Section 5.01 of the Indenture; (iv) failure by the Company or any of its
Restricted Subsidiaries for 60 days after notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding voting as a single class to comply with any of
the other agreements in this Indenture; (v) default under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether
such Indebtedness or Guarantee now exists, or is created after the date of
this Indenture, if that default (1) is caused by a failure to pay
principal under any such instrument at maturity, and such unpaid portion
exceeds $15.0 million individually or, together with the principal amount
of any other such Indebtedness under which there has been a payment
default at maturity, aggregates $15.0 million or more and is not paid, or
such default is not cured or waived, within any grace period applicable
thereto, unless such Indebtedness is discharged within 20 days of the
Company or a Restricted Subsidiary becoming aware of such default (a
"Payment Default") or (2) results in the acceleration of such Indebtedness
prior to its express maturity, and the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $15.0 million or more; (vi)
failure by the Company or any of its Restricted Subsidiaries to pay final
judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $15.0 million or dollar equivalent, net of
amounts covered by insurance, which judgment or decree has remained
outstanding for a period of 60 days after such judgment or decree becomes
final and nonappealable without being paid, discharged, waived or stayed;
(vii) certain events of bankruptcy; (viii) except as permitted by this
Indenture, any Note Guarantee of a Significant Subsidiary or any two or
more Note Guarantors that when taken together would constitute a
Significant Subsidiary is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and
effect, or any Guarantor, or any Person acting on behalf of any Guarantor
that is a Significant Subsidiary or any two or more Note Guarantors that
when taken together would constitute a Significant Subsidiary, denies or
disaffirms its obligations under its Note Guarantee; (ix) failure by the
Company to comply
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with any material term of the Escrow and Security Agreement that is not
cured within 10 days; or (x) the Escrow and Security Agreement or any
other security document or any Lien purported to be granted thereby on the
Escrow Account or the cash or Governmental Securities therein is held in
any judicial proceeding to be unenforceable or invalid, in whole or in
part, or ceases for any reason (other than pursuant to a release that is
delivered or becomes effective as set forth in this Indenture) to be fully
enforceable and perfected. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes may declare all the Notes
to be due and payable immediately; provided that so long as any
Indebtedness permitted to be incurred pursuant to the Credit Facilities is
outstanding, such acceleration will not be effective until the earlier of
(1) the acceleration of such Indebtedness under the Credit Facilities or
(2) five Business Days after receipt by the Company of written notice of
such acceleration. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing
Default or Event of Default (except a Default or Event of Default relating
to the payment of principal or interest or premium or Special Interest, if
any) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may, on behalf of the Holders
of all of the Notes, rescind an acceleration or waive any existing Default
or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest or
premium or Special Interest, if any, on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
(14) SUBORDINATION. Payment of principal, interest and premium and
Special Interest, if any, on the Notes is subordinated to the prior
payment of Senior Debt on the terms provided in the Indenture.
(15) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not the Trustee.
(16) NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, will
have any liability for any obligations of the Company or the Guarantors
under the Notes, this Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for
issuance of the Notes. The waiver may not be effective to waive
liabilities under the federal securities laws.
(17) AUTHENTICATION. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(18) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the
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entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
(19) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes will have all the rights set forth in the Registration
Rights Agreement dated as of June 10, 2004, among the Company and the
other parties named on the signature pages thereof or, in the case of
Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes will have the rights set forth in one or more
registration rights agreements, if any, among the Company , the Guarantors
and the other parties thereto, relating to rights given by the Company and
the Guarantors to the purchasers of any Additional Notes (collectively,
the "Registration Rights Agreement").
(20) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed
thereon.
(21) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
c/o Autocam Corporation/Micron Notes Corporation
4070 East Paris Avenue Southeast
Kentwood, Michigan 49512
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
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Your Signature: ____________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
-Section 4.10 -Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$________________
Date: _______________
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Your Signature: ____________________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: _____________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount
Amount of decrease Amount of increase in of this Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
of of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
- ---------------- ------------------- --------------------- ------------------- ------------------
* This schedule should be included only if the Note is issued in global form.
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[Face of Regulation S Temporary Global Note]
CUSIP/CINS __________
10.875% Senior Subordinated Notes due 2014
No. ___ $__________
MICRON NOTES CORPORATION
promises to pay to CEDE & CO. or registered assigns,
the principal sum of __________________________________________________________
DOLLARS on ________________.
Interest Payment Dates: ________ and __________
Record Dates: ___________ and ____________
Dated: _______________, 200_
MICRON NOTES CORPORATION
By:____________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
By:________________________________________
Authorized Signatory
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[Back of Regulation S Temporary Global Note]
10.875% Senior Subordinated Notes due 2014
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). EXCEPT IN THE CASE OF A
REDEMPTION OF THE NOTES PURSUANT TO SECTION 3.09(b) OF THE INDENTURE, NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON IN WHICH CASE ANY SUCH
INTEREST DUE SHALL BE HELD BY THE TRUSTEE.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933 (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND (B) IN
A2-2
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. Micron Notes Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note
at 10.875% per annum from ________________, 20__ until maturity and shall
pay the Special Interest, if any, payable pursuant to any Registration
Rights Agreement referred to below. The Company will pay interest and
Special Interest, if any, semi-annually in arrears on June 15 and December
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"). Interest on
the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of issuance; provided
that if there is no existing Default in the payment of interest, and if
this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided further
that the first Interest Payment Date shall be _____________. The Company
will pay interest (including post-petition interest in any proceeding
under the Bankruptcy Law) on overdue installments of interest and Special
Interest, if any, (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Special Interest, if any, to the Persons
who are registered Holders at the close of business on the June 1 or
December 1 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium and
Special Interest, if any, and interest at the office or agency of the
Company maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of interest and
Special Interest, if any, may be made by check mailed to the Holders at
their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Special Interest,
if any, on, all Global Notes and all other Notes the Holders of which will
have provided wire transfer instructions to the Company or the Paying
Agent. Such payment will be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public
and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, J.P. Morgan Trust
Company, National Association, the Trustee under the Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated
as of June 10, 2004 (the "Indenture") among the Company, the Guarantors
and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the TIA.
The Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be
controlling. Except to the extent provided in the Escrow and Security
Agreement dated as of June 10, 2004 (the "Escrow and Security Agreement"),
among the Company, the Trustee and
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J.P. Morgan Trust Company, National Association, as escrow agent, the
Notes are unsecured obligations of the Company. The Indenture does not
limit the aggregate principal amount of Notes that may be issued
thereunder.
(5) OPTIONAL REDEMPTION.
(a) At any time prior to June 15, 2007, the Company may, on any one or
more occasions, redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture (calculated giving effect to any issuance of
Additional Notes) at a redemption price of 110.875% of the principal amount,
plus accrued and unpaid interest and Special Interest, if any, to, but not
including, the redemption date (subject to the right of Holders on any relevant
interest record date to receive interest on the relevant interest payment date),
in an amount up to the net cash proceeds of one or more Equity Offerings (1) by
the Company or (2) by a Parent to the extent the net cash proceeds thereof are
contributed to the Company or used to purchase Qualified Capital Stock from the
Company; provided that: (i) at least 65% of the aggregate principal amount of
Notes originally issued under this Indenture (calculated giving effect to any
issuance of Additional Notes and excluding Notes held by the Company and its
Subsidiaries) remains outstanding immediately after the occurrence of such
redemption; and (ii) the redemption occurs within 60 days of the date of the
closing of such Equity Offering.
(b) Except pursuant to the preceding paragraphs, the Notes will not be
redeemable at the Company's option prior to June 15, 2009.
(c) On or after June 15, 2009, the Company may redeem all or a part of the
Notes upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Special Interest, if any, on the Notes redeemed,
to, but not including, the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of the years indicated below, subject
to the rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
- ---- ----------
2009................. 105.438%
2010................. 103.625%
2011................. 101.813%
2012 and thereafter.. 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(6) MANDATORY REDEMPTION.
Except as described in paragraph 7, the Company is not required to make
mandatory redemption or sinking fund payments with respect to the Notes.
(7) SPECIAL MANDATORY REDEMPTION.
(a) The Escrow Property, in an aggregate amount of $138,368,013,
representing: the proceeds from the issuance and sale of the Notes not of
underwriting fees in the amount of $3,764,414, (ii) 50.0% of the aggregate
underwriting discount received by the Initial Purchases in Connection with the
offering of the Notes in the amount of $1,882,207 and (iii) or amount equal to
$3,362,420 contributed by Micron Notes Corporation, will be held by the Trustee,
in its capacity as Escrow Agent, in the Escrow
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Account pursuant to the Escrow and Security Agreement. The Escrow Property will
be invested as provided in the Escrow and Security Agreement.
(b) In addition to any payments required by Sections 4.10 and 4.15, if the
conditions to release of the Escrow Property to Micron Notes Corporation and to
any other party entitled thereto in connection with the consummation of the
Acquisition, which are set forth in Section I.3(b) of the Escrow and Security
Agreement, have not been satisfied on or prior to June 30, 2003 (the
"Deadline"), Micron Notes Corporation will redeem all of the outstanding Notes
on July 15, 2004, pursuant to the terms of the Escrow and Security Agreement, at
a redemption price equal to 97.777% of the aggregate principal amount of Notes,
plus accrued and unpaid interest, and the amount of the original issue discount
amortized from June 10, 2004, to but not including July 15, 2004; provided,
however, that the Deadline may be extended one time by Micron Notes Corporation
to a date not later than August 16, 2004, provided that on such extension date
Micron Notes Corporation deposits with the Escrow Agent an amount that, together
with the amount set forth in Section 3.09(a), is sufficient to redeem in cash
the Notes, in whole and not in part, at a redemption price equal to 97.777% of
the aggregate principal amount of the Notes, plus accrued and unpaid interest,
and the amount of the original issue discount amortized from June 10, 2004 to,
but not including, August 30, 2004; provided, further that if the Merger
Agreement is terminated at any time prior to August 16, 2004, Micron Notes
Corporation will redeem all of the outstanding Notes within ten Business Days of
such termination, at a redemption price equal to 97.777% of the aggregate
principal amount of the Notes, plus accrued and unpaid interest, and the amount
of the original issue discount amortized from June 10, 2004 to, but not
including, such date of redemption.
(c) Immediately upon receipt by the Paying Agent of the Escrow Property,
the Trustee will notify the Holders of the date fixed for special mandatory
redemption pursuant to this paragraph 7.
(8) REPURCHASE AT THE OPTION OF THE HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder will have the
right to require the Company to make an offer (a "Change of Control Offer") to
each Holder to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of that Holder's Notes at a purchase price in cash equal to
101% of the aggregate principal amount of Notes repurchased plus accrued and
unpaid interest and Special Interest, if any, on the Notes repurchased to, but
not including, the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date (the "Change of Control Payment"); provided that the Company will not be
required to make a Change of Control Offer upon a Change of Control if (1) a
third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in Section 4.15 and
Section 3.10 of the Indenture and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer, or (2) notice of redemption has
been given pursuant to Section 3.07 of the Indenture, unless and until there is
a default in payment of the applicable redemption price. Within 30 days
following any Change of Control, or at the Company's option, prior to the
completion of such Change of Control event but only after such event is publicly
announced, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes on the Change of Control Payment Date as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary of the Company consummates
any Asset Sales, within ten days of each date on which the aggregate amount of
Excess Proceeds exceeds $15.0 million, the Company will make an Asset Sale Offer
to all Holders and all Holders of other Indebtedness that is pari passu with the
Notes containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets to
purchase the maximum principal amount of Notes and such other pari passu
Indebtedness that may be purchased out
A2-5
of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to
100% of the principal amount plus accrued and unpaid interest and Special
Interest, if any, to, but not including, the date of purchase, and will be
payable in cash (subject to the right of Holders on the relevant record date to
receive interest on the relevant interest payment date). If any Excess Proceeds
remain after consummation of an Asset Sale Offer, the Company may use those
Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If
the aggregate principal amount of Notes and other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari passu Indebtedness to be
purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero. Holders that are subject of an
offer to purchaser will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" attached to
the Notes.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address, except
that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction or discharge of the Indenture. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed.
(10) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, the Company need not exchange or register
the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes or the Note Guarantees may be
amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class, and any
existing Default or Event or Default or compliance with any provision of
the Indenture or the Notes or the Note Guarantees may be waived with the
consent of the Holders of a majority in aggregate principal amount of the
then outstanding Notes including Additional Notes, if any, voting as a
single class. Without the consent of any Holder of a Note, the Indenture
or the Notes or the Note Guarantees may be amended or supplemented to cure
any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company's or a Guarantor's obligations to Holders and
Note Guarantees in case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the Holders or
that does not adversely affect the legal rights under the Indenture of any
such Holder, to comply with the requirements of the SEC in order to effect
or maintain the qualification of the Indenture under the TIA, to conform
the text of the Indenture or the Notes to
A2-6
any provision of the "Description of Notes" section of the Company's
Offering Circular dated May 26, 2004, relating to the initial offering of
the Notes, to the extent that such provision in that "Description of
Notes" was intended to be a verbatim recitation of a provision of the
Indenture, the Note Guarantees or the Notes, to provide for the issuance
of Additional Notes and Exchange Notes in accordance with the limitations
set forth in the Indenture, to allow any Guarantor to execute a
supplemental indenture to the Indenture and/or a Note Guarantee with
respect to the Notes, or to provide for the release of the Company or any
Guarantor from any of its obligations under the Notes, the Additional
Notes, the Exchange Notes the Note Guarantees or this Indenture in
accordance with the terms of this Indenture.
(13) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Special Interest,
if any, with respect to, the Notes, whether or not prohibited by the
subordination provisions of this Indenture; (ii) default in the payment
when due (at maturity, upon redemption or otherwise) of the principal of,
or premium, if any, on, the Notes, whether or not prohibited by the
subordination provisions of this Indenture; (iii) failure by the Company
or any of its Restricted Subsidiaries to comply with the provisions of
Sections 5.01 of the Indenture; (iv) failure by the Company or any of its
Restricted Subsidiaries for 60 days after notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding voting as a single class to comply with any of
the other agreements in this Indenture; (v) default under any mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), whether
such Indebtedness or Guarantee now exists, or is created after the date of
this Indenture, if that default (1) is caused by a failure to pay
principal under any such instrument at maturity, and such unpaid portion
exceeds $15.0 million individually or, together with the principal amount
of any other such Indebtedness under which there has been a payment
default at maturity, aggregates $15.0 million or more and is not paid, or
such default is not cured or waived, within any grace period applicable
thereto, unless such Indebtedness is discharged within 20 days of the
Company or a Restricted Subsidiary becoming aware of such default (a
"Payment Default") or (2) results in the acceleration of such Indebtedness
prior to its express maturity, and the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $15.0 million or more; (vi)
failure by the Company or any of its Restricted Subsidiaries to pay final
judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $15.0 million or dollar equivalent, net of
amounts covered by insurances, which judgment or decree has remained
outstanding for a period of 60 days after such judgment or decree becomes
final and nonappealable without being paid, discharged, waived or stayed;
(vii) certain events of bankruptcy; (viii) except as permitted by this
Indenture, any Note Guarantee of a Significant Subsidiary or any two or
more Subsidiary Guarantors that when taken together would constitute a
Significant Subsidiary is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and
effect, or any Guarantor, or any Person acting on behalf of any Guarantor
that is a Significant Subsidiary or any two or more Subsidiary Guarantors
that when taken together would constitute a Significant Subsidiary, denies
or disaffirms its obligations under its Note Guarantee; (ix) failure by
the Company to comply with any material term of the Escrow and Security
Agreement that is not cured within 10 days; or (x) the Escrow and Security
Agreement or any other security document or any Lien purported to be
granted thereby on the Escrow Account or the cash or Governmental
Securities therein is held in any judicial proceeding to be unenforceable
or invalid, in whole or in part, or ceases for any reason (other than
pursuant to a release that is delivered or becomes effective as set forth
in this Indenture) to be fully enforceable and perfected. If any Event of
Default occurs and
A2-7
is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes may declare all the Notes
to be due and payable immediately; provided that so long as any
Indebtedness permitted to be incurred pursuant to the Credit Facilities is
outstanding, such acceleration will not be effective until the earlier of
(1) the acceleration of such Indebtedness under the Credit Facilities or
(2) five Business Days after receipt by the Company of written notice of
such acceleration. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing
Default or Event of Default (except a Default or Event of Default relating
to the payment of principal or interest or premium or Special Interest, if
any) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may, on behalf of the Holders
of all of the Notes, rescind an acceleration or waive any existing Default
or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest or
premium or Special Interest, if any, on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon
becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
(14) SUBORDINATION. Payment of principal, interest and premium and
Special Interest, if any, on the Notes is subordinated to the prior
payment of Senior Debt on the terms provided in the Indenture.
(15) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not the Trustee.
(16) NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, will
have any liability for any obligations of the Company or the Guarantors
under the Notes, this Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for
issuance of the Notes. The waiver may not be effective to waive
liabilities under the federal securities laws.
(17) AUTHENTICATION. This Note will not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(18) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
(19) ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes will have all the rights set forth in the Registration
Rights Agreement dated as of June 10, 2004, among the Company, the
A2-8
other parties named on the signature pages thereof or, in the case of
Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes will have the rights set forth in one or more
registration rights agreements, if any, among the Company , the Guarantors
and the other parties thereto, relating to rights given by the Company and
the Guarantors to the purchasers of any Additional Notes (collectively,
the "Registration Rights Agreement").
(20) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes, and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption, and
reliance may be placed only on the other identification numbers placed
thereon.
(21) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
c/o Autocam Corporation/Micron Notes Corporation
4070 East Paris Avenue Southeast
Kentwood, Michigan 49512
Attention: Chief Financial Officer
A2-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature: ____________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
-Section 4.10 -Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_____________
Date: _______________
Your Signature: ____________________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:____________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A2-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global
Note for an interest in another Global Note, or exchanges of a part of another
other Restricted Global Note for an interest in this Regulation S Temporary
Global Note, have been made:
Principal Amount
Amount of decrease Amount of increase in of this Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
of of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
- ---------------- ------------------- --------------------- ------------------- ------------------
A2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Autocam Corporation
4070 East Paris Avenue Southeast
Kentwood, Michigan 49512
Attention: Chief Financial Officer
J.P. Morgan Trust Company, National Association
227 West Monroe Street, 26th Floor
Facsimile No.: (312) 267-5208
Attention: Benita A. Pointer
Re: 10.875% Senior Subordinated Notes due 2014
Reference is hereby made to the Indenture, dated as of June 10, 2004 (the
"Indenture"), among Micron Notes Corporation, as issuer (the "Company"), the
Guarantors party thereto and J.P. Morgan Trust Company, National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Note is being transferred to a Person that the Transferor reasonably
believes is purchasing the beneficial interest or Definitive Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S PERMANENT GLOBAL NOTE
OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United States and (x) at
the time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the United
States, (ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act, (iii) the transaction
B-1
is not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Permanent Global Note, the
Regulation S Temporary Global Note and/or the Restricted Definitive Note and in
the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A RESTRICTED DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
B-2
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
________________________________________
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated: _______________________
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________), or
(ii) [ ] Regulation S Global Note (CUSIP _________), or
(iii) [ ] Unrestricted Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Autocam Corporation
4070 East Paris Avenue Southeast
Kentwood, Michigan 49512
Attention: Chief Financial Officer
J.P. Morgan Trust Company, National Association
227 West Monroe Street, 26th Floor
Facsimile No.: (312) 267-5208
Attention: Benita A. Pointer
Re: 10.875% Senior Subordinated Notes due 2014
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of June 10, 2004 (the
"Indenture"), among ______________, as issuer (the "Company"), the Guarantors
party thereto and J.P. Morgan Trust Company, National Association, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
C-1
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
[ ]144A Global Note, [ ]Regulation S Global Note with an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Exchange in accordance with the
terms of the Indenture, the beneficial interest issued will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the relevant Restricted Global Note and in the Indenture and the Securities Act.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_________________________________
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: ______________________
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EXHIBIT D
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of June __, 2004 (the "Indenture") among
_____________________________________ (the "Company"), the Guarantors party
thereto and J.P. Morgan Trust Company, National Association, as trustee (the
"Trustee"), (a) the due and punctual payment of the principal of, premium and
Special Interest, if any, and interest on, the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal of and interest on the Notes, if any, if lawful, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee all in accordance with the terms of the Indenture and (b)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. The obligations of the Guarantors
to the Holders and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article 11 of the Indenture and reference
is hereby made to the Indenture for the precise terms of the Note Guarantee.
Each Holder of a Note, by accepting the same, (a) agrees to and shall be bound
by such provisions (b) authorizes and directs the Trustee, on behalf of such
Holder, to take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that the
Indebtedness evidenced by this Note Guarantee shall cease to be so subordinated
and subject in right of payment upon any defeasance of this Note in accordance
with the provisions of the Indenture.
Capitalized terms used but not defined herein have the meanings given to
them in the Indenture.
[NAME OF GUARANTOR(S)]
By:________________________________________
Name:
Title:
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EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 200__, among __________________ (the "Guarantor"), [a
subsidiary of _________________________ (or its permitted successor), a
[Delaware] corporation (the "Company"), the Company,] and ____________________,
as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of ______________, 200__ providing for
the issuance of 10.875% Senior Subordinated Notes due 2014 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited
to Article 11 thereof.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the SEC that such a waiver is against public policy.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
E-1
5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: ______________________________________
Name:
Title:
[COMPANY]
By: ______________________________________
Name:
Title:
[EXISTING GUARANTORS]
By: ______________________________________
Name:
Title:
[TRUSTEE],
as Trustee
By: ______________________________________
Authorized Signatory
E-3
EXHIBIT F
FORM OF ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT (this "Agreement"), dated as of _________, 2004,
between Autocam Corporation, a Michigan corporation (the "Company"), and J.P.
Morgan Trust Company, National Association, as trustee under the indenture
referred to below ("Trustee").
W I T N E S S E T H
WHEREAS, Micron Notes Corporation, a Delaware corporation (the "Issuer"),
has heretofore executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of June ___, 2004, providing for the issuance of 10.875%
Senior Subordinated Senior Notes due 2014 (the "Notes");
WHEREAS, concurrently herewith, the Issuer is being merged with and into
the Company, with the Company as the surviving entity (the "Issuer Merger");
WHEREAS, pursuant to Section 4.21 of the Indenture, the Company is
required to execute and deliver this Agreement concurrently with the Issuer
Merger;
WHEREAS, the substitution of the Company for the Issuer is subject to
Section 5.02 of the Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders as follows:
1. ASSUMPTION. The Company hereby assumes all of the obligations of the
Issuer under the Indenture and the Notes and, hereafter, shall be deemed the
"Company" for all purposes under the Indenture and the Notes.
2. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE AND ENFORCE THIS AGREEMENT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICT OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
3. COUNTERPARTS. The parties may sign any number of copies of this
Agreement. Each signed copy shall be an original, but all of them together
represent the same agreement.
4. EFFECT OF HEADINGS. The Section headings herein are for convenience
of reference only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first above written.
Dated: __________, 2004
AUTOCAM CORPORATION
By: _______________________________________
Name:
Title:
Dated: __________, 2004
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION
By: _______________________________________
Name:
Title:
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