EXHIBIT 4.1
INTERMET CORPORATION,
AS ISSUER,
THE GUARANTORS PARTY HERETO,
AS GUARANTORS,
9-3/4% SENIOR NOTES DUE 2009
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INDENTURE
DATED AS OF JUNE 13, 2002
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U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
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310 (a)(1)...................................................................... 7.10
(a)(2)...................................................................... 7.10
(a)(3)...................................................................... N.A.
(a)(4)...................................................................... N.A.
(a)(5)...................................................................... 7.10
(b)......................................................................... 7.3, 7.8, 7.10
(c)......................................................................... N.A.
311 (a)......................................................................... 7.11
(b)......................................................................... 7.11
(c)......................................................................... N.A.
312 (a)......................................................................... 2.5
(b)......................................................................... 12.3
(c)......................................................................... 12.3
313 (a)......................................................................... 7.6
(b)(1)...................................................................... 7.6
(b)(2)...................................................................... 7.6, 7.7
(c)......................................................................... 7.5, 7.6, 12.2
(d)......................................................................... 7.6
314 (a)......................................................................... 4.3, 4.4, 12.2, 12.5
(b)......................................................................... N.A.
(c)(1)...................................................................... 4.4, 12.4
(c)(2)...................................................................... 12.4
(c)(3)...................................................................... 12.4
(d)......................................................................... N.A.
(e)......................................................................... 12.5
(f)......................................................................... N.A.
315 (a)......................................................................... 7.1; 7.2
(b)......................................................................... 7.5, 12.2
(c)......................................................................... 7.1
(d)......................................................................... 7.1
(e)......................................................................... 6.11
316 (a)(last sentence).......................................................... 2.9
(a)(1)(A)................................................................... 6.5
(a)(1)(B)................................................................... 6.4
(a)(2)...................................................................... N.A.
(b)......................................................................... 6.7
(c)......................................................................... 2.12
317 (a)(1)...................................................................... 6.8
(a)(2)...................................................................... 6.9
(b)......................................................................... 2.4
318 (a)......................................................................... 12.1
(b)......................................................................... N.A.
(c)......................................................................... 12.1
N.A. MEANS NOT APPLICABLE.
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* This Cross-Reference Table shall not, for any purpose, be deemed a part
of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions........................................................ 1
Section 1.2. Other Definitions.................................................. 24
Section 1.3. Incorporation by Reference of Trust Indenture Act.................. 25
Section 1.4. Rules of Construction.............................................. 25
Section 1.5. Acts of Holders.................................................... 26
ARTICLE II.
THE NOTES
Section 2.1. Form and Dating.................................................... 27
Section 2.2. Execution and Authentication....................................... 28
Section 2.3. Registrar and Paying Agent......................................... 29
Section 2.4. Paying Agents to Hold Money in Trust............................... 29
Section 2.5. Holder Lists....................................................... 29
Section 2.6. Transfer and Exchange.............................................. 30
Section 2.7. Replacement Notes.................................................. 38
Section 2.8. Outstanding Notes.................................................. 38
Section 2.9. Treasury Notes..................................................... 39
Section 2.10. Temporary Notes.................................................... 39
Section 2.11. Cancellation....................................................... 39
Section 2.12. Defaulted Interest................................................. 39
Section 2.13. Persons Deemed Owners.............................................. 40
Section 2.14. CUSIP Numbers...................................................... 40
Section 2.15. Designation........................................................ 40
ARTICLE III.
REDEMPTION AND REPURCHASE
Section 3.1. Notices to Trustee................................................. 40
Section 3.2. Selection of Notes................................................. 41
Section 3.3. Notice of Optional or Special Redemption........................... 41
Section 3.4. Effect of Notice of Redemption..................................... 42
Section 3.5. Deposit of Redemption Price or Purchase Price...................... 42
Section 3.6. Notes Redeemed or Repurchased in Part.............................. 43
Section 3.7. Optional Redemption................................................ 43
Section 3.8. Special Redemption................................................. 43
Section 3.9. Repurchase upon Change of Control Offer............................ 43
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Section 3.10. Repurchase upon Application of Excess Proceeds..................... 45
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.................................. 47
Section 4.2. Maintenance of Office or Agency.................................... 47
Section 4.3. Reports............................................................ 48
Section 4.4. Compliance Certificate............................................. 48
Section 4.5. Taxes.............................................................. 49
Section 4.6. Stay, Extension and Usury Laws..................................... 49
Section 4.7. Limitation on Restricted Payments.................................. 49
Section 4.8. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries .......................................... 52
Section 4.9. Limitation on Incurrence of Additional Indebtedness................ 53
Section 4.10. Limitation on Asset Sales.......................................... 54
Section 4.11. Limitations on Transactions with Affiliates........................ 55
Section 4.12. Limitation on Liens................................................ 57
Section 4.13. Continued Existence................................................ 58
Section 4.14. Insurance Matters.................................................. 58
Section 4.15. Offer to Repurchase upon Change of Control......................... 58
Section 4.16. Additional Subsidiary Guarantees................................... 59
Section 4.17. Payments for Consent............................................... 59
Section 4.18. Limitation on Preferred Stock of Restricted Subsidiaries........... 59
ARTICLE V.
SUCCESSORS
Section 5.1. Merger, Consolidation and Sale of Assets........................... 60
Section 5.2. Successor Corporation Substituted.................................. 62
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.................................................. 62
Section 6.2. Acceleration....................................................... 63
Section 6.3. Other Remedies..................................................... 64
Section 6.4. Waiver of Past Defaults............................................ 65
Section 6.5. Control by Majority................................................ 65
Section 6.6. Limitation on Suits................................................ 65
Section 6.7. Rights of Holders of Notes to Receive Payment...................... 65
Section 6.8. Collection Suit by Trustee......................................... 66
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Section 6.9. Trustee May File Proofs of Claim................................... 66
Section 6.10. Priorities......................................................... 66
Section 6.11. Undertaking for Costs.............................................. 67
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.................................................. 67
Section 7.2. Rights of Trustee.................................................. 68
Section 7.3. Individual Rights of Trustee....................................... 69
Section 7.4. Trustee's Disclaimer............................................... 69
Section 7.5. Notice of Defaults................................................. 69
Section 7.6. Reports by Trustee to Holders of the Notes......................... 70
Section 7.7. Compensation, Reimbursement and Indemnity.......................... 70
Section 7.8. Replacement of Trustee............................................. 71
Section 7.9. Successor Trustee by Merger, Etc................................... 72
Section 7.10. Eligibility; Disqualification...................................... 72
Section 7.11. Preferential Collection of Claims Against Company.................. 72
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance........... 72
Section 8.2. Legal Defeasance and Discharge..................................... 73
Section 8.3. Covenant Defeasance................................................ 73
Section 8.4. Conditions to Legal or Covenant Defeasance......................... 74
Section 8.5. Deposited Money and U.S. Government Securities to Be Held in
Trust; Other Miscellaneous Provisions............................ 75
Section 8.6. Repayment to the Company........................................... 76
Section 8.7. Reinstatement...................................................... 76
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes................................ 77
Section 9.2. With Consent of Holders of Notes................................... 77
Section 9.3. Compliance with Trust Indenture Act................................ 79
Section 9.4. Revocation and Effect of Consents.................................. 79
Section 9.5. Notation on or Exchange of Notes................................... 79
Section 9.6. Trustee to Sign Amendment, Etc..................................... 79
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ARTICLE X.
GUARANTEE
Section 10.1. Unconditional Guarantee............................................ 80
Section 10.2. Severability....................................................... 81
Section 10.3. Limitation of Guarantor's Liability................................ 81
Section 10.4. Release of Guarantor............................................... 81
Section 10.5. Contribution....................................................... 81
Section 10.6. Waiver of Subrogation.............................................. 82
Section 10.7. Execution of Guarantee............................................. 82
Section 10.8. Waiver of Stay, Extension or Usury Laws............................ 83
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge......................................... 83
Section 11.2. Application of Trust............................................... 84
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Trust Indenture Act Controls....................................... 84
Section 12.2. Notices............................................................ 84
Section 12.3. Communication by Holders of Notes with Other Holders of Notes...... 86
Section 12.4. Certificate and Opinion as to Conditions Precedent................. 86
Section 12.5. Statements Required in Certificate or Opinion...................... 86
Section 12.6. Rules by Trustee and Agents........................................ 87
Section 12.7. No Personal Liability of Directors, Officers, Employees and
Stockholders .................................................... 87
Section 12.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.... 87
Section 12.9. No Adverse Interpretation of Other Agreements...................... 88
Section 12.10. Successors......................................................... 88
Section 12.11. Severability....................................................... 88
Section 12.12. Counterpart Originals.............................................. 88
Section 12.13. Table of Contents, Headings, Etc................................... 88
Section 12.14. Qualification of Indenture......................................... 88
Signatures ................................................................... S-1
EXHIBITS
Exhibit A Form of Series A Note
Exhibit B Form of Series B Note
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Page
Exhibit C Form of Guarantee
Exhibit D(1) Form of Regulation S Certification
Exhibit D(2) Form of Certificate to Be Delivered upon Exchange or
Registration of Transfer of Notes
Exhibit E Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit F Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
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INDENTURE
INDENTURE dated as of June 13, 2002 among INTERMET
Corporation, a Georgia corporation (the "Company"), the Guarantors (as defined
herein) listed on Scheduled A hereto, and U.S. Bank National Association, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders (as defined below)
of the Company's 9-3/4% Senior Notes due 2009:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or into
the Company or any of its Restricted Subsidiaries or assumed in connection with
the acquisition of assets from such Person and in each case not incurred by such
Person in connection with, or in anticipation or contemplation of, such Person
becoming a Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Additional Interest" means all additional interest then owing
pursuant to Section 4 of the Registration Rights Agreement or the comparable
section of any registration rights agreement entered into in connection with the
issuance of any Additional Notes.
"Additional Notes" means Notes issued pursuant to Article II
and in compliance with Section 4.9 hereof, in addition to and having terms and
conditions identical to the $175.0 million aggregate principal amount of Series
A Notes issued on the Issue Date or to the Series B Notes.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Acquisition" means (1) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (2) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
Person (other than a Restricted Subsidiary of the Company) which constitute all
or substantially all of the assets of such Person or
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comprises any division or line of business of such Person or any other
properties or assets of such Person other than in the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of
the Company of: (1) any Capital Stock of any Restricted Subsidiary of the
Company; or (2) any other property or assets of the Company or any Restricted
Subsidiary of the Company other than in the ordinary course of business;
provided, however, that asset sales or other dispositions shall not include: (a)
a transaction or series of related transactions for which the Company or its
Restricted Subsidiaries receive aggregate consideration of less than $2.5
million; (b) the sale, lease, conveyance, disposition or other transfer of all
or substantially all of the assets (determined on a consolidated basis for the
Company and its Restricted Subsidiaries) of the Company as permitted by Section
5.1 hereof; (c) any Restricted Payment permitted by Section 4.7 hereof or that
constitutes a Permitted Investment; (d) sales or other dispositions of
inventory, receivables or other current assets in the ordinary course of
business; (e) a Permitted Lien; (f) a sale or other disposition or abandonment
of damaged, worn-out or obsolete property; (g) a Sale and Leaseback Transaction
entered into for purposes of receiving favorable state or local tax treatment on
assets where the purchaser of the assets is a state of the United States or any
political subdivision of any such state or any political instrumentality thereof
and where the Company or any of its Restricted Subsidiaries, as the case may be,
maintains the unqualified right and option to repurchase the assets for a
nominal consideration; and (h) a Qualified Securitization Transaction.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of
directors or similar governing body of such Person or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means any day other than 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 not a Business Day at a place of payment, payment may be
made at that place on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.
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"Capital Stock" means:
(1) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person; and
(2) with respect to any Person that is not a corporation, any
and all partnership, membership or other equity interests of such
Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States of America or issued
by any agency thereof and backed by the full faith and credit of the
United States of America, in each case maturing within one year from
the date of acquisition thereof;
(2) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state
or any public instrumentality thereof, maturing within one year from
the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from either Standard &
Poor's, a division of The McGraw-Hill Companies ("S&P"), or Moody's
Investors Service, Inc. ("Moody's");
(3) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing
within one year from the date of acquisition thereof issued by any bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia or any U.S. branch of a foreign
bank having at the date of acquisition thereof combined capital and
surplus of not less than $250.0 million;
(5) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (1)
above entered into with any bank meeting the qualifications specified
in clause (4) above; and
(6) investments in money market funds which invest
substantially all their assets in securities of the types described in
clauses (1) through (5) above.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme,
Luxembourg.
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"Change of Control" means the occurrence of one or more of the
following events:
(1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of the Company and its Restricted
Subsidiaries, taken as a whole, to any Person or group of related
Persons for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture);
(2) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of
the Company (whether or not otherwise in compliance with the provisions
of this Indenture);
(3) any Person or Group (other than any entity formed for the
purpose of owning Capital Stock of the Company) shall become the owner,
directly or indirectly, beneficially or of record, of shares
representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company;
or
(4) the replacement of a majority of the Board of Directors of
the Company over a two-year period from the directors who constituted
the Board of Directors of the Company at the beginning of such period,
and such replacement shall not have been approved by a vote of at least
a majority of the Board of Directors of the Company then still in
office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of
Directors was previously so approved.
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of, such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means INTERMET Corporation, a Georgia corporation,
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Person.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced
thereby:
(a) all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such
period (other than income taxes attributable to extraordinary,
unusual or nonrecurring gains or losses or taxes attributable
to sales or dispositions outside the ordinary course of
business);
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(b) Consolidated Interest Expense; and
(c) Consolidated Non-cash Charges less any non-cash
items increasing Consolidated Net Income for such period,
all as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available (the "Transaction
Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to:
(1) the incurrence or repayment of any Indebtedness of such
Person or any of its Restricted Subsidiaries (and the application of
the proceeds thereof) giving rise to the need to make such calculation
and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or
repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities,
occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment, as the case may
be (and the application of the proceeds thereof), occurred on the first
day of the Four Quarter Period; and
(2) any asset sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Indebtedness
and also including any Consolidated EBITDA (including any pro forma
expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Exchange Act) attributable to the assets which
are the subject of the Asset Acquisition or asset sale or other
disposition during the Four Quarter Period) occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such
asset sale or other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness)
occurred on the first day of the Four Quarter Period.
If such Person or any of its Restricted Subsidiaries directly
or indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness.
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"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of:
(1) Consolidated Interest Expense; plus
(2) the product of (x) the amount of all cash dividend
payments on any series of Preferred Stock of such Person and, to the
extent permitted under this Indenture, its Restricted Subsidiaries
(other than dividends paid in Qualified Capital Stock) paid, accrued or
scheduled to be paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated federal, state and
local tax rate of such Person, expressed as a decimal.
In calculating "Consolidated Fixed Charges":
(1) if interest on any Indebtedness actually incurred on the
Transaction Date (including Acquired Indebtedness) may optionally be
determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate or other rates,
then the interest rate in effect on the Transaction Date shall be
deemed to have been in effect during the Four Quarter Period; and
(2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be
deemed to accrue at the rate per annum resulting after giving effect to
the operation of such agreements.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication:
(1) the aggregate of the net interest expense of such Person
and its Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without
limitation: (a) any amortization of debt discount and amortization or
write-off of deferred financing costs; (b) the net costs under Interest
Swap Obligations; (c) all capitalized interest; and (d) the interest
portion of any deferred payment obligation; and
(2) the interest component of Capitalized Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by such Person and
its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded therefrom (without
duplication):
(1) after-tax gains and after-tax losses from Asset Sales
(without regard to the $2.5 million limitation set forth in the
definition thereof) or abandonments or reserves relating thereto;
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(2) after-tax items classified as extraordinary or
nonrecurring gains;
(3) the net income or loss of any Person acquired prior to the
date it becomes a Restricted Subsidiary of the referent Person or is
merged or consolidated with the referent Person or any Restricted
Subsidiary of the referent Person;
(4) the net income (but not loss) of any Restricted Subsidiary
of the referent Person to the extent that the declaration of dividends
or similar distributions by that Restricted Subsidiary of that income
is restricted by a contract, operation of law or otherwise;
(5) the net income of any Person, other than a Restricted
Subsidiary of the referent Person, except to the extent of cash
dividends or distributions paid to the referent Person or to a Wholly
Owned Restricted Subsidiary of the referent Person by such Person;
(6) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;
(7) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued);
and
(8) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charge which requires an accrual of or a reserve for cash charges for
any future period).
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.2 hereof or such other address as
to which the Trustee may give notice to the Company.
"Credit Agreement" means the Five-Year Credit Agreement dated
as of November 5, 1999 as amended through the Issue Date, among the Company, the
lenders listed therein in their capacities as lenders thereunder and The Bank of
Nova Scotia, as administrative agent, Bank One, Michigan, as syndication agent,
and SunTrust Bank, as documentation agent, together with the documents related
thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder (provided that such increase in borrowings is
permitted by Section
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4.9 hereof) or adding Restricted Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the Indebtedness under
such agreement and/or any one or more successor or replacement agreements and
whether by the same or any other agent, lender or group of lenders.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Depositary" means, with respect to the Notes issuable in
whole or in part in global form, the Person specified in Section 2.6(g) hereof
as the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions or this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is redeemable at the sole option
of the holder thereof (except, in each case, upon the occurrence of a Change of
Control), on or prior to the final maturity date of the Notes.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws of the United
States, any state thereof or any territory or possession of the United States.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Offer" means the offer that shall be made by the
Company pursuant to the Registration Rights Agreement to exchange Series A Notes
for Series B Notes.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the senior management or
the Board of Directors of the Company for values less than $10.0 million and the
Board of Directors of the Company for values of $10.0 million or greater, in
each case acting reasonably and in good faith and, if so determined by the Board
of Directors, shall be evidenced by a Board Resolution of the Company delivered
to the Trustee.
-9-
"Final Memorandum" shall mean the Company's final offering
memorandum dated June 10, 2002.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary of the Company other than a Domestic Restricted 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 may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Guarantee" has the meaning set forth in Section 10.1.
"Guarantor" means: (1) each of the Company's Domestic
Restricted Subsidiaries as of the Issue Date other than Intermet International,
Inc., Intermet Holding Co., Transnational Indemnity Company and Western Capital
Corporation; and (2) each of the Company's Restricted Subsidiaries that in the
future executes a supplemental indenture in which such Restricted Subsidiary
agrees to be bound by the terms of this Indenture as a Guarantor; provided that
any Person constituting a Guarantor as described above shall cease to constitute
a Guarantor when its respective Guarantee is released in accordance with the
terms of this Indenture; and provided further that Intermet International, Inc.,
Intermet Holding Co., Transnational Indemnity Company and Western Capital
Corporation shall not be Guarantors unless so designated in writing by the
Company.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means with respect to any Person, without
duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
and all Obligations under any title retention agreement (but excluding
trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 180 days or more or
are being contested in good faith);
(5) all Obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction;
(6) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (1) through (5) above and clause
(8) below;
-10-
(7) all Obligations of any other Person of the type referred
to in clauses (1) through (6) which are secured by any Lien on any
property or asset of such Person, the amount of such Obligation being
deemed to be the lesser of the fair market value of such property or
asset and the amount of the Obligation so secured;
(8) all Obligations under Currency Agreements and Interest
Swap Obligations of such Person;
(9) all Obligations under Qualified Securitization
Transactions except obligations of a Securitization Entity; and
(10) all Disqualified Capital Stock issued by such Person with
the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any.
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock. Any Indebtedness which is incurred at a discount to
the principal amount at maturity thereof shall be deemed to have been incurred
at the full principal amount at maturity thereof.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Independent Financial Advisor" means a firm: (1) which does
not, and whose directors, officers and employees or Affiliates do not, have a
direct or indirect financial interest in the Company; and (2) which, in the
judgment of the senior management (except with respect to Affiliate Transactions
to which they are a party) or the Board of Directors of the Company, is
otherwise independent and qualified to perform the task for which it is to be
engaged.
"Initial Purchasers" means Deutsche Bank Securities Inc., Banc
of America Securities LLC, Scotia Capital (USA) Inc., SunTrust Capital Markets,
Inc., Banc One Capital Markets, Inc., Comerica Securities, Inc. and ABN AMRO
Incorporated.
"Interest Swap Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
-11-
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any other Person. "Investment" shall exclude extensions of trade
credit by the Company and its Restricted Subsidiaries on commercially reasonable
terms in accordance with normal trade practices of the Company or such
Restricted Subsidiary, as the case may be. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any Capital Stock of
any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Restricted Subsidiary is no
longer a Restricted Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Common Stock of such Restricted Subsidiary not sold or
disposed of. If the Company designates any of its Restricted Subsidiaries to be
an Unrestricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of such designation equal to the Designation Amount
determined in accordance with the definition of "Unrestricted Subsidiary."
"Issue Date" means the date of original issuance of the Notes.
"Lien" means any lien, mortgage, deed of trust, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of:
(1) reasonable out-of-pocket expenses and fees relating to
such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions);
(2) taxes paid or payable after taking into account any
reduction in consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements;
(3) repayment of Indebtedness that is secured by the property
or assets that are the subject of such Asset Sale; and
(4) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may
be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
-12-
"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 thereof 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 thereof 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.
"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Notes" means the Series A Notes and the Series B Notes, if
any, that are issued under this Indenture, as amended or supplemented from time
to time.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness except
Standard Securitization Undertakings.
"Officer" means, (a) with respect to any Person that is a
corporation, the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, the Controller, the Secretary or any Vice-President of such Person
and (b) with respect to any other Person, the individuals selected by such
Person to perform functions similar to those of the officers listed in clause
(a).
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the Chief
Executive Officer, the Chief Financial Officer, the Treasurer or the principal
accounting officer of the Company, that meets the requirements of Sections 12.4
and 12.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Sections
12.4 and 12.5 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"Permitted Business" means any business that is the same,
similar, reasonably related, complementary or incidental to the business in
which the Company or any of its Restricted Subsidiaries is engaged on the Issue
Date.
-13-
"Permitted Indebtedness" means, without duplication, each of
the following:
(1) Indebtedness under the Notes and the Guarantees given in
connection therewith in an aggregate principal amount not to exceed
$175.0 million;
(2) Indebtedness incurred pursuant to the Credit Agreement in
an aggregate principal amount at any time outstanding not to exceed
$300.0 million less the amount of all required permanent repayments
(which are accompanied by a corresponding permanent commitment
reduction) thereunder with the Net Cash Proceeds from Asset Sales;
(3) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions therein;
(4) Interest Swap Obligations of the Company or any Restricted
Subsidiary of the Company covering Indebtedness of the Company or any
of its Restricted Subsidiaries; provided, however, that the notional
principal amount of such Interest Swap Obligation does not, at the time
of the incurrence thereof, exceed the principal amount of the
Indebtedness to which such Interest Swap Obligation relates;
(5) Indebtedness under Currency Agreements; provided that in
the case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the Company and
its Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(6) Indebtedness of a Restricted Subsidiary of the Company to
the Company or to a Guarantor or a Wholly Owned Restricted Subsidiary
of the Company for so long as such Indebtedness is held by the Company
or a Guarantor or a Wholly Owned Restricted Subsidiary of the Company,
in each case subject to no Lien (other than pursuant to the Credit
Agreement) held by a Person other than the Company or a Guarantor or a
Wholly Owned Restricted Subsidiary of the Company; provided that if as
of any date any Person other than the Company or a Guarantor or a
Wholly Owned Restricted Subsidiary of the Company owns or holds any
such Indebtedness or holds a Lien in respect of such Indebtedness, such
date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the issuer of such Indebtedness;
(7) Indebtedness of the Company to a Restricted Subsidiary of
the Company for so long as such Indebtedness is held by a Restricted
Subsidiary of the Company and subject to no Lien (other than pursuant
to the Credit Agreement); provided that (a) such Indebtedness is
unsecured and subordinated, pursuant to a written agreement, to the
Company's obligations under this Indenture and the Notes and (b) if as
of any date any Person other than a Restricted Subsidiary of the
Company owns or holds any such Indebtedness or any Person holds a Lien
in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by
the Company;
-14-
(8) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, adjustment of
purchase price, earn-out or other similar obligations, in each case,
incurred or assumed in connection with the disposition of any business,
assets of the Company or a Restricted Subsidiary, other than guarantees
of Indebtedness incurred by any Person acquiring all or any portion of
such business, assets of the Company or Restricted Subsidiary for the
purpose of financing such acquisition; provided that the maximum
assumable liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;
(9) Indebtedness consisting of take-or-pay obligations
contained in supply agreements entered into by the Company or any of
the Restricted Subsidiaries in the ordinary course;
(10) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two business
days of incurrence;
(11) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of performance bonds, bankers' acceptances,
workers' compensation claims, surety or appeal bonds, payment
obligations in connection with self-insurance or similar obligations,
and bank overdrafts (and letters of credit in respect thereof) in the
ordinary course of business;
(12) Indebtedness represented by Capitalized Lease Obligations
and Purchase Money Indebtedness of the Company and its Restricted
Subsidiaries incurred in the ordinary course of business not to exceed
$20.0 million at any one time outstanding;
(13) Refinancing Indebtedness;
(14) Indebtedness of the Company's Foreign Restricted
Subsidiaries in an aggregate principal amount not to exceed the sum of
(A) 80% of the net book value of the accounts receivable of the Foreign
Restricted Subsidiaries, and (B) 50% of the net book value of the
inventory of the Foreign Restricted Subsidiaries, in each case as of
the most recent balance sheet date;
(15) the incurrence by a Securitization Entity of Indebtedness
in a Qualified Securitization Transaction that is Non-Recourse Debt
(except for Standard Securitization Undertakings) with respect to the
Company and its other Restricted Subsidiaries; and
(16) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $20.0
million at any one time outstanding (which amount may, but need not, be
incurred in whole or in part under the Credit Agreement).
-15-
For purposes of determining compliance with Section 4.9
hereof, in the event that an item of Indebtedness meets the criteria of more
than one of the categories of Permitted Indebtedness described in clauses (1)
through (16) above or is entitled to be incurred pursuant to the Consolidated
Fixed Charge Coverage Ratio provisions of Section 4.9 hereof, the Company shall,
in its sole discretion, classify (or later reclassify) such item of Indebtedness
in any manner that complies with this definition. Accrual of interest, accretion
or amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Capital Stock in the form of additional
shares of the same class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for
purposes of Section 4.9 hereof.
"Permitted Investments" means:
(1) Investments by the Company or any Restricted Subsidiary of
the Company in any Person that is or will become immediately after such
Investment a Guarantor or a Wholly Owned Restricted Subsidiary of the
Company that is not a Guarantor or that will merge or consolidate into
the Company, a Guarantor or a Wholly Owned Restricted Subsidiary of the
Company that is not a Guarantor;
(2) Investments in the Company by any Restricted Subsidiary of
the Company; provided that any Indebtedness evidencing such Investment
is unsecured and subordinated, pursuant to a written agreement, to the
Company's obligations under the Notes and this Indenture;
(3) Investments in cash and Cash Equivalents;
(4) loans and advances to directors, employees and officers of
the Company and its Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes not in excess of $2.5 million
at any one time outstanding;
(5) Currency Agreements and Interest Swap Obligations entered
into in the ordinary course of the Company's or its Restricted
Subsidiaries' businesses and not for speculative purposes and otherwise
in compliance with this Indenture;
(6) additional Investments (including, without limitation,
Investments in Unrestricted Subsidiaries and joint ventures) having an
aggregate fair market value, taken together with all other Investments
made pursuant to this clause (6) that are at that time outstanding, not
to exceed $7.5 million at the time of such Investment (with the fair
market value of each Investment being measured at the time made and
without giving effect to subsequent changes in value);
(7) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers;
-16-
(8) Investments made by the Company or its Restricted
Subsidiaries as a result of consideration received in connection with
an Asset Sale made in compliance with Section 4.10 hereof;
(9) Investments existing on the Issue Date;
(10) Investments in Permitted Joint Ventures of up to $17.5
million outstanding at any one time;
(11) any Investment by the Company or a Subsidiary of the
Company in a Securitization Entity or any Investment by a
Securitization Entity in any other Person in connection with a
Qualified Securitization Transaction; provided that any Investment in a
Securitization Entity is in the form of a purchase money note or any
equity interest; and
(12) any acquisition of assets solely in exchange for the
issuance of Qualified Capital Stock of the Company.
"Permitted Joint Venture" means an entity characterized as a
joint venture (however structured) in which the Company or a Restricted
Subsidiary (a) owns at least 10% of the ownership interest and (b) has the right
to receive a percentage of the profits or distributions at least equal to the
percentage of its ownership interest; provided that such joint venture is not a
Restricted Subsidiary.
"Permitted Liens" means the following types of Liens:
(1) Liens existing as of the Issue Date to the extent and in
the manner such Liens are in effect on the Issue Date;
(2) Liens securing the Notes and the Guarantees;
(3) Liens securing Indebtedness under the Credit Agreement;
provided that such Indebtedness does not exceed the greater of (a) the
amount of Indebtedness permitted to be incurred pursuant to clause (2)
of the definition of "Permitted Indebtedness" and (b) the sum of (A)
80% of the net book value of the accounts receivable of the Company and
the Domestic Restricted Subsidiaries and (B) 50% of the net book value
of the inventory of the Company and the Domestic Restricted
Subsidiaries;
(4) Liens in favor of the Company or any Restricted Subsidiary
of the Company;
(5) Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary, provided that such
Liens were in existence prior to the contemplation of such acquisition;
(6) Liens securing Refinancing Indebtedness which is incurred
to Refinance any Indebtedness which has been secured by a Lien
permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided, however,
that such Liens: (i) are no less favorable to the Holders and are not
more favorable to the lien-
-17-
holders with respect to such Liens than the Liens in respect of the
Indebtedness being Refinanced; and (ii) do not extend to or cover any
property or assets of the Company or any of its Restricted Subsidiaries
not securing the Indebtedness so Refinanced;
(7) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) being contested in good faith
by appropriate proceedings and as to which the Company or any of its
Restricted Subsidiaries shall have set aside on its books such reserves
as may be required pursuant to GAAP;
(8) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(9) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(10) judgment liens not giving rise to an Event of Default so
long as such Liens are adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired;
(11) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
interfering in any material respect with the ordinary conduct of the
business of the Company or any of its Restricted Subsidiaries;
(12) Liens upon specific items of inventory or other goods and
proceeds of the Company or any of its Restricted Subsidiaries securing
such Person's obligations in respect of bankers' acceptances issued or
created for the account of such Person to facilitate the purchase,
shipment or storage of such inventory or other goods;
(13) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(14) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty
requirements of the Company or any of its Restricted Subsidiaries,
including rights of offset and set-off;
-18-
(15) Liens securing Interest Swap Obligations which Interest
Swap Obligations relate to Indebtedness that is otherwise permitted
pursuant to clause (4) of the definition of "Permitted Indebtedness";
(16) Liens securing Capitalized Lease Obligations and Purchase
Money Indebtedness; provided, however, that in the case of Capitalized
Lease Obligations, such Liens do not extend to any property or assets
which are not leased property subject to such Capitalized Lease
Obligations;
(17) Liens securing Indebtedness under Currency Agreements
permitted to be incurred pursuant to clause (5) of the definition of
"Permitted Indebtedness";
(18) Liens securing Acquired Indebtedness incurred in
accordance with Section 4.9 hereof; provided that:
(a) such Liens secured such Acquired Indebtedness at
the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the
Company and were not granted in connection with, or in
anticipation of, the incurrence of such Acquired Indebtedness
by the Company or a Restricted Subsidiary of the Company; and
(b) such Liens do not extend to or cover any property
or assets of the Company or of any of its Restricted
Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Company or a Restricted
Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness
prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company;
(19) Liens securing Indebtedness permitted to be incurred
pursuant to clause (14) of the definition of "Permitted Indebtedness";
(20) Liens securing Indebtedness permitted to be incurred
pursuant to clause (15) of the definition of "Permitted Indebtedness";
(21) Liens securing Indebtedness permitted to be incurred
pursuant to clause (16) of the definition of "Permitted Indebtedness";
and
(22) other Liens incurred in the ordinary course of business
of the Company or any of its Restricted Subsidiaries with respect to
obligations that do not exceed $5.0 million in the aggregate.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization, trust or joint venture,
or a governmental agency or political subdivision thereof.
-19-
"PORTAL Market" means the Portal Market operated by the
National Association of Securities Dealers, Inc. or any successor thereto.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Public Equity Offering" means an underwritten public offering
of Qualified Capital Stock of the Company pursuant to a registration statement
filed with the Commission in accordance with the Securities Act.
"Purchase Date" means, with respect to any Note to be
repurchased, the date fixed for such repurchase by or pursuant to this
Indenture.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in the normal course of
business for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or equipment;
provided, however, that (1) the amount of such Indebtedness shall not exceed
such purchase price or cost, (2) such Indebtedness shall not be secured by any
asset other than the specified asset being financed or, in the case of real
property or fixtures, including additions and improvements, the real property to
which such asset is attached and (3) such Indebtedness shall be incurred within
90 days after such acquisition of such asset by the Company or such Restricted
Subsidiary or such installation, construction or improvement.
"Purchase Price" means the amount payable for the repurchase
of any Note on a Purchase Date, exclusive of accrued and unpaid interest and
Additional Interest (if any) thereon to the Purchase Date, unless otherwise
specifically provided.
"QIB" means a qualified institutional buyer as defined in Rule
144A under the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Securitization Transaction" means any transaction
or series of transactions pursuant to which the Company or any of its Restricted
Subsidiaries may (a) sell, contribute, convey or otherwise transfer to a
Securitization Entity (in the case of a transfer by the Company or any of its
Restricted Subsidiaries), and (b) any transaction by and between Securitization
Entities and any other Person whether in the form of a sale or the granting of a
security interest in, any accounts receivable (which, for the purposes of this
definition, include other payment obligations due to the Company or a Restricted
Subsidiary) or equipment (whether now existing or arising or acquired in the
future) of the Company or any of its Restricted Subsidiaries, and any assets
related thereto including, without limitation, all collateral securing such
accounts receivable and equipment and other assets (including contract
-20-
rights and all guarantees or other obligations with respect to such accounts
receivable and equipment, proceeds of such accounts receivable and equipment and
other assets (including contract rights) which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable and equipment,
all of the foregoing for the purpose of providing working capital financing on
terms that are more favorable to the Company and its Restricted Subsidiaries
than would otherwise be available at that time.
"Redemption Date" means, with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means the amount payable for the redemption
of any Note on a Redemption Date, exclusive of' accrued and unpaid interest and
Additional Interest (if any) thereon to the Redemption Date, unless otherwise
specifically provided.
"Refinance" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of the Company of Indebtedness incurred in
accordance with Section 4.9 hereof (other than pursuant to clause (2), (4), (5),
(6), (7), (8), (9), (10), (11), (12), (14), (15) or (16) of the definition of
"Permitted Indebtedness"), in each case that does not:
(1) result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed Refinancing
(plus the amount of any premium required to be paid under the terms of
the instrument governing such Indebtedness and plus the amount of
reasonable fees and expenses incurred by the Company in connection with
such Refinancing); or
(2) create Indebtedness with: (a) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced; or (b) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced; provided that (x)
if such Indebtedness being Refinanced is Indebtedness solely of the
Company, then such Refinancing Indebtedness shall be Indebtedness
solely of the Company and (y) if such Indebtedness being Refinanced is
subordinate or junior to the Notes, then such Refinancing Indebtedness
shall be subordinate to the Notes at least to the same extent and in
the same manner as the Indebtedness being Refinanced.
"Registration Rights Agreement" means the registration rights
agreement dated as of the Issue Date among the Company, the Guarantors and the
Initial Purchasers.
"Regulation S" means Regulation S as promulgated under the
Securities Act.
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee assigned by the Trustee to administer this
Indenture and also means, with respect to a par-
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ticular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party providing for
the leasing to the Company or a Restricted Subsidiary of the Company of any
property, whether owned by the Company or any Restricted Subsidiary of the
Company at the Issue Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person or to
any other Person by whom funds have been or are to be advanced on the security
of such Property.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute or statutes thereto.
"Securitization Entity" means a Wholly Owned Subsidiary of the
Company (or another Person in which the Company or any Subsidiary of the Company
makes an Investment and to which the Company or any Subsidiary of the Company
transfers accounts receivable or equipment and related assets) that engages in
no activities other than in connection with the financing of accounts receivable
(which, for the purposes of this definition, include other payment obligations
due to the Company or a Restricted Subsidiary) or equipment and that is
designated by the Board of Directors of the Company (as provided below) as a
Securitization Entity (a) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which (i) is guaranteed by the Company
or any other Restricted Subsidiary (excluding guarantees of Obligations (other
than the principal of, and interest on, Indebtedness)) pursuant to Standard
Securitization Undertakings or (ii) is recourse to or obligates the Company or
any Restricted Subsidiary in any way other than pursuant to Standard
Securitization Undertakings, (b) with which neither the Company nor any
Restricted Subsidiary has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
that are not Affiliates of the Company, other than fees payable in the ordinary
course of business in connection with servicing accounts receivable of such
entity, and (c) to which neither the Company nor any Restricted Subsidiary has
any obligation to maintain or preserve such entity's financial condition or
cause such entity to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Company shall be evidenced to each
of the Trustees by filing with the Trustees a certified copy of the resolution
of the Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions.
"Series A Notes" means the Company's 9-3/4% Senior Notes due
2009, whether issued on the Issue Date or thereafter.
"Series B Notes" means notes issued by the Company hereunder
containing terms identical to the Series A Notes (except that (i) interest
thereon shall accrue from the last date on
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which interest was paid on the Series A Notes or, if no such interest has been
paid, from the date of original issuance, (ii) the legend or legends relating to
transferability and other related matters set forth on the Series A Notes,
including the text referred to in footnote 2 of Exhibit A hereto, shall be
removed or appropriately altered, and (iii) as otherwise set forth herein), to
be offered to Holders of Series A Notes in exchange for such Series A Notes
pursuant to the Exchange Offer or any exchange offer specified in any
registration rights agreement relating to Additional Notes or in a registered
public offering of Additional Notes.
"Significant Subsidiary", with respect to any Person, means
(1) any Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act as such Regulation is in effect on the Issue Date and (2) any
Restricted Subsidiary of such Person that, when aggregated with all other
Restricted Subsidiaries of such Person that are not otherwise Significant
Subsidiaries and as to which any event described in clause (f), (g) or (h) of
Section 6.1 hereof has occurred and is continuing, would constitute a
Significant Subsidiary under clause (1) of this definition.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company that are reasonably customary in securitization
transactions relating to accounts receivable (including other payment
obligations due to the Company or a Restricted Subsidiary) or equipment.
"Subordinated Indebtedness" means Indebtedness of the Company
or any Guarantor that is subordinated or junior in right of payment to the Notes
or such Guarantee, as the case may be.
"Subsidiary", with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast in the
election of directors under ordinary circumstances shall at the time be
owned, directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the
voting interest under ordinary circumstances is at the time, directly
or indirectly, owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA; provided that in the event the Trust Indenture Act of
1939 is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Transfer Restricted Security" means a Note that is a
restricted security as defined in Rule 144(a)(3) under the Securities Act.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter means the successor serving hereunder.
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"Unrestricted Subsidiary" of any Person means:
(1) any Subsidiary of such Person that at the time of
determination shall be or continue to be designated an Unrestricted
Subsidiary by the Board of Directors of such Person in the manner
provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary (including
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided that:
(1) the Company certifies to the Trustee that such designation
complies with Section 4.7 hereof, including that the Company would be
permitted to make, at the time of such designation, (a) a Permitted
Investment or (b) an Investment pursuant to the first paragraph of
Section 4.7 hereof, in either case, in an amount (the "Designation
Amount") equal to the fair market value of the Company's proportionate
interest in such Subsidiary on such date; and
(2) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender has recourse to any of the assets of the Company or
any of its Restricted Subsidiaries.
The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary only if:
(1) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.9
hereof; and
(2) immediately before and immediately after giving effect to
such designation, no Default or Event of Default shall have occurred
and be continuing.
Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an officers' certificate
certifying that such designation complied with the foregoing provisions.
Any Securitization Entity now existing or hereafter created
shall be an Unrestricted Subsidiary if it only engages in one or more Qualified
Securitization Transactions.
"U.S. Government Securities" shall mean securities which are
(i) direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a person controlled
or supervised by and acting as an agency or instrumentality of the
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United States of America, the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Securities or a specific
payment of interest on or principal of any such U.S. Government Securities held
by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Securities or the specific payment of interest on or principal of the
U.S. Government Securities evidenced by such depository receipt.
"U.S. Person" means any U.S. Person as defined in Regulation
S.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
Wholly Owned Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary of such Person.
"Wholly Owned Subsidiary" of any Person means any Subsidiary
of such Person of which all the outstanding voting securities (other than in the
case of a foreign Subsidiary, directors' qualifying shares or an immaterial
amount of shares required to be owned by other Persons pursuant to applicable
law) are owned by such Person or any Wholly Owned Subsidiary of such Person.
Section 1.2. Other Definitions.
Term Defined in Section
- ---- ------------------
"Affiliate Transaction".................................. 4.11
"Agent Members".......................................... 2.6
"Certificated Notes"..................................... 2.1
"Change of Control Offer"................................ 4.15
"Change of Control Offer Period"......................... 3.9
"Covenant Defeasance".................................... 8.3
"Event of Default"....................................... 6.1
"Foreign Person"......................................... 2.6
"Global Notes"........................................... 2.1
"incur".................................................. 4.9
"Institutional Accredited Investors"..................... 2.1
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Term Defined in Section
- ---- ------------------
"Legal Defeasance"....................................... 8.2
"Net Proceeds Offer"..................................... 4.10
"Net Proceeds Offers Amount"............................. 4.10
"Net Proceeds Offers Trigger Date"....................... 4.10
"Offshore Certificated Notes"............................ 2.1
"Paying Agent"........................................... 2.3
"Permanent Regulation S Global Note"..................... 2.1
"Private Placement Legend"............................... 2.6
"Registrar".............................................. 2.3
"Regulation S Global Note"............................... 2.1
"Restricted Payment"..................................... 4.7
"Restricted Payment Basket".............................. 4.7
"Rule 144A Global Note".................................. 2.1
"Special Redemption"..................................... 3.8
"Surviving Entity"....................................... 5.1
"Temporary Regulation S Global Note"..................... 2.1
"U.S. Certificated Notes"................................ 2.1
Section 1.3. 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;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
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(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and transactions;
and
(f) references to sections of or rules under the Securities
Act, the Exchange Act and the TIA shall be deemed to include
substitute, replacement and successor sections or rules adopted by the
Commission from time to time.
Section 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders signing or
bound by such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 7.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by an officer of a corporation or a member of a
partnership, on behalf of such corporation or partnership, such certificate or
affidavit shall also constitute sufficient proof of his or her authority.
(c) The ownership of Notes shall be proved by the register
maintained by the Registrar.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
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ARTICLE II.
THE NOTES
Section 2.1. Form and Dating.
The Series A Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage
in addition to those set forth in Exhibit A hereto. The Series B Notes shall be
substantially in the form of Exhibit B hereto. The notation on each note
relating to the Guarantees shall be substantially in the form set forth on
Exhibit C, which is part of this Indenture. Each Note shall 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 and Guarantees shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of a single permanent global Note in registered form,
substantially in the form set forth in Exhibit A (the "Rule 144A Global Note"),
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Rule 144A Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Note in registered form substantially in the form set forth in Exhibit A (the
"Temporary Regulation S Global Note"), deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. At any time following 40 days after the later
of the commencement of the offering of the Notes and the Issue Date, upon
receipt by the Trustee and the Company of a duly executed certificate
substantially in the form of Exhibit D(1) hereto, a single permanent Global Note
in registered form substantially in the form set forth in Exhibit A (the
"Permanent Regulation S Global Note," and together with the Temporary Regulation
S Global Note, the "Regulation S Global Note") duly executed by the Company and
authenticated by the Trustee as hereinafter provided shall be deposited with the
Trustee, as custodian for the Depositary, and the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of the
beneficial interest in the Regulation S Global Note transferred.
Notes offered and sold to institutional accredited investors (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
("Institutional Accredited Investors") shall be issued in the form of permanent
U.S. Certificated Notes in registered form in substantially the form
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set forth in Exhibit A (the "U.S. Certificated Notes"). Securities issued
pursuant to Section 2.6 in exchange for interests in the Rule 144A Global Note
or the Regulation S Global Note shall be in the form of permanent Certificated
Notes in registered form substantially in the form set forth in Exhibit A (the
"Offshore Certificated Notes").
The Offshore Certificated Notes and U.S. Certificated Notes are
sometimes collectively herein referred to as the "Certificated Notes." The Rule
144A Global Note and the Regulation S Global Note are sometimes referred to
herein as the "Global Notes."
Section 2.2. Execution and Authentication.
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature. The seal of the Company shall be reproduced on
the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid. Each Guarantor shall execute a Guarantee in the manner set forth in
Section 10.7.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee, upon a written order of the Company signed by two
Officers of the Company, together with the other documents required by Sections
12.4 and 12.5 hereof, shall authenticate (i) Series A Notes for original issue
on the Issue Date in the aggregate principal amount not to exceed $175.0 million
and (ii) subject to Section 4.9, Additional Notes. The Trustee, upon written
order of the Company signed by two Officers of the Company, together with the
other documents required by Sections 12.4 and 12.5 hereof, shall authenticate
Series B Notes; provided that such Series B Notes shall be issuable only upon
the valid surrender for cancellation of Series A Notes of a like aggregate
principal amount in accordance with the Exchange Offer or an exchange offer
specified in any registration rights agreement relating to Additional Notes or
in connection with a registered public offering of Additional Notes. Such
written order of the Company shall specify the amount of Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated. Any Additional Notes shall be part of the same issue as the Notes
being issued on the Issue Date and will vote on all matters as one class with
the Notes being issued on the Issue Date, including, without limitation,
waivers, amendments, redemptions, Change of Control Offers and Net Proceeds
Offers. For the purposes of this Indenture, except for Section 4.9, references
to the Notes include Additional Notes, if any.
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 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 the Company or
an Affiliate of the Company.
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Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
At the option of the Company, payment of interest and Additional Interest 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, Redemption Price and Purchase
Price of, and interest and Additional Interest (if any) on, all Global Notes and
all other Notes the Holders of which shall have provided wire transfer
instructions to the Trustee or the Paying Agent. 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 shall notify the Trustee in writing of
the name and address of any Paying 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 may act as Paying Agent or
Registrar. The Depositary shall, by acceptance of a Global Note, agree that
transfers of beneficial interests in such Global Note may be effected only
through a book-entry system maintained by the Depositary (or its agent), and
that ownership of a beneficial interest in the Note shall be required to be
reflected in a book entry.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to the Global Notes.
Section 2.4. Paying Agents to Hold Money in Trust.
The Company shall 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 and of any premium, if any, interest and Additional Interest, if any,
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) shall have no further liability for the money. If the Company acts as
Paying Agent, it shall 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 shall serve
as Paying Agent for the Notes.
Section 2.5. Holder Lists.
The Trustee shall 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 shall 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
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names and addresses of the Holders of Notes, and the Company shall otherwise
comply with TIA Section 312(a).
Section 2.6. Transfer and Exchange.
(a) Transfer and Exchange Generally; Book Entry Provisions. Upon
surrender for registration of transfer of any Note to the Registrar, and
satisfaction of the requirements for such transfer set forth in this Section
2.6, the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Notes
of any authorized denominations and of a like aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Notes to be exchanged at any such office or agency maintained by the Company
pursuant to Section 4.2. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Registrar,
and the Notes shall be duly executed by the Holder thereof or his attorney duly
authorized in writing. Except as otherwise provided in this Indenture, and in
addition to the requirements set forth in the legend referred to in Section
2.6(h)(i) below, in connection with any transfer of Transfer Restricted
Securities any request for transfer shall be accompanied by a certification to
the Trustee relating to the manner of such transfer substantially in the form of
Exhibit D(2) hereto.
(b) Book-Entry Provisions for the Global Notes. The Rule 144A Global
Note and Regulation S Global Note initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for the Depositary and (iii) bear legends as set forth in
Section 2.6(h).
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Rule 144A Global
Note or Regulation S Global Note, as the case may be, held on their behalf by
the Depositary, or the Trustee as its custodian, or under the Rule 144A Global
Note or Regulation S Global Note, as the case may be, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of Rule 144A Global Note or Regulation S Global Note, as
the case may be, for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Note.
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Transfers of the Rule 144A Global Note and the Regulation S Global
Note shall be limited to transfers of such Rule 144A Global Note or Regulation S
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Beneficial interests in the Rule 144A Global Note and
the Regulation S Global Note may be transferred in accordance with the
applicable rules and procedures of the Depositary and the provisions of this
Section 2.6. The registration of transfer and exchange of beneficial interests
in the Global Note, which does not involve the issuance of a Certificated Note,
shall be effected through the Depositary, in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of
the Depositary therefor. The Trustee shall have no responsibility or liability
for any act or omission of the Depositary.
At any time at the request of the beneficial holder of an interest
in the Rule 144A Global Note or Permanent Regulation S Global Note to obtain a
Certificated Note, such beneficial holder shall be entitled to obtain a
Certificated Note upon written request to the Trustee and the Note Custodian in
accordance with the standing instructions and procedures existing between the
Note Custodian and Depositary for the issuance thereof. Upon receipt of any such
request, the Trustee, or the Note Custodian at the direction of the Trustee,
will cause, in accordance with the standing instructions and procedures existing
between the Depositary and the Note Custodian, the aggregate principal amount of
the Rule 144A Global Note or Permanent Regulation S Global Note, as appropriate,
to be reduced by the principal amount of the Certificated Note issued upon such
request to such beneficial holder and, following such reduction, the Company
will execute and the Trustee will authenticate and deliver to such beneficial
holder (or its nominee) a Certificated Note or Certificated Notes in the
appropriate aggregate principal amount in the name of such beneficial holder (or
its nominee) and bearing such restrictive legends as may be required by this
Indenture.
(c) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Transfer Restricted Security to any Institutional
Accredited Investor that is not a QIB (other than any Person that is not a U.S.
Person as defined under Regulation S, a "Foreign Person"):
(i) The Registrar shall register the transfer of any Note, whether
or not such Note bears the Private Placement Legend, if (x) (A) the
requested transfer is at least two years after the later of the Issue Date
of the Notes and (B) the proposed transferee has certified to the
Registrar that the requested transfer is at least two years after last
date on which such Note was held by an Affiliate of the Company, or (y)
the proposed transferee has delivered to the Registrar (A) a certificate
substantially in the form of Exhibit E hereto and (B) such certifications,
legal opinions and other information as the Trustee and the Company may
reasonably request to confirm that such transaction is in compliance with
the Securities Act; and
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the documents, if any, required by clause (i) and (y) instructions
given in accordance with the Depositary's and the Registrar's procedures,
the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Note in an amount equal to
the principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Certificated Notes of like tenor and
amount.
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(d) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Transfer Restricted
Security to a QIB (other than Foreign Persons):
(i) if the Note to be transferred consists of Certificated Notes or
an interest in the Regulation S Global Note, the Registrar shall register
the transfer if such transfer is being made by a proposed transferor who
has checked the box provided for on a certificate substantially in the
form of Exhibit D(2) stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who is a QIB within the meaning of
Rule 144A and is aware that the sale to it is being made in reliance on
Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Note to
be transferred consists of Certificated Notes or an interest in the
Regulation S Global Note, upon receipt by the Registrar of the documents
referred to in clause (i) and instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall reflect
on its books and records the date and an increase in the principal amount
of the Rule 144A Global Note in an amount equal to the principal amount of
the Certificated Notes or the interest in the Regulation S Global Note, as
the case may be, to be transferred, and the Trustee shall cancel the
Certificated Notes or decrease the amount of the Regulation S Global Note
so transferred.
(e) Transfers of Interests in the Temporary Regulation S Global
Note. The following provisions shall apply with respect to the registration of
any proposed transfer of interests in the Temporary Regulation S Global Note:
(i) The Registrar shall register the transfer of an interest in the
Temporary Regulation S Global Certificate if (x) the proposed transferor
has delivered to the Registrar a certificate substantially in the form of
Exhibit F hereto stating, among other things, that the proposed transferee
is a Foreign Person or (y) the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on a certificate
substantially in the form of Exhibit D(2) stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee who is
a QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A; and
(ii) if the proposed transferee is an Agent Member, upon receipt by
the Registrar of the documents referred to in clause (i)(y) above and
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Rule 144A Global Note in an
amount equal to the principal amount of the Temporary Regulation S Global
Note to be transferred, and the Trustee, as Note Custodian, shall decrease
the amount of the Temporary Regulation S Global Note.
(f) Transfers to Foreign Persons. The following provisions shall
apply with respect to any transfer of a Transfer Restricted Security to a
Foreign Person:
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(i) the Registrar shall register any proposed transfer of a Note to
a Foreign Person upon receipt of a certificate substantially in the form
of Exhibit F hereto from the proposed transferor and such certifications,
legal opinions and other information as the Trustee or the Company may
reasonably request; and
(ii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the Rule 144A Global Note or the Note to be
transferred consists of Certificated Notes, upon receipt by the Registrar
of (x) the documents, if any, required by paragraph (i) and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Rule 144A Global Note in an
amount equal to the principal amount of the beneficial interest in the
Rule 144A Global Note or cancel the Certificated Notes, as the case may
be, to be transferred, and (b) if the proposed transferee is an Agent
Member, upon receipt by the Registrar of instructions given in accordance
with the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of the Regulation S Global Note in an amount equal to the principal
amount of the Certificated Notes to be transferred, and the Trustee shall
decrease the amount of the Rule 144A Global Note.
(g) The Depositary. The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially appoints The Depository
Trust Company to act as Depositary with respect to the Global Note. Initially,
the Rule 144A Global Note and the Regulation S Global Note shall be issued to
the Depositary, registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Note Custodian for Cede & Co.
Notes in Certificated form issued in exchange for all or a part of a
Global Note pursuant to this Section 2.6 shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. Upon execution and authentication, the Trustee shall deliver such
Certificated Notes in Certificated form to the persons in whose names such Notes
in Certificated form are so registered.
Certificated Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Rule 144A Global Note or the
Permanent Regulation S Global Note, as the case may be, if at any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Rule
144A Global Note or the Permanent Regulation S Global Note, as the case
may be, and a successor Depositary is not appointed by the Company within
90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Certificates Notes under
this Indenture,
and the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 hereof, authenticate and
deliver Certificated Notes in an aggregate principal
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amount equal to the principal amount of the Rule 144A Global Note or the
Permanent Regulation S Global Note, as the case may be, in exchange for such
Global Notes.
(h) Legends.
(i) Except as permitted by the following paragraphs (ii) and (iii),
each Note certificate evidencing Global Notes and Certificated Notes (and
all Notes issued in exchange therefor or substitution thereof) shall (x)
be subject to the restrictions on transfer set forth in this Section 2.6
(including those set forth in the legend below) unless such restrictions
on transfer shall be waived by written consent of the Company, and the
holder of each Transfer Restricted Security, by such Holder's acceptance
thereof, agrees to be bound by all such restrictions on transfer and (y)
bear the legend set forth below (the "Private Placement Legend"):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER
THE SECURITIES ACT (AN "ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO INTERMET CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE
FOR THIS NOTE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO INTERMET CORPORATION IF
INTERMET CORPORATION SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION
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STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO
EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND INTERMET CORPORATION SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Note)
pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(a) in the case of any Transfer Restricted Security that is a
Certificated Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Certificated Note
that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Security;
and
(b) in the case of any Transfer Restricted Security represented by a
Global Note, such Transfer Restricted Security shall not be required
to bear the legend set forth in (i) above, but shall continue to be
subject to the provisions of Section 2.6(b) hereof; provided,
however, that with respect to any request for an exchange of a
Transfer Restricted Security that is represented by a Global Note
for a Certificated Note that does not bear the legend set forth in
(i) above, which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such certifications to
be substantially in the form of Exhibit D(2) hereto).
(iii) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2 hereof, the Trustee
shall authenticate Series B Notes in exchange for Series A Notes accepted
for exchange in the Exchange Offer, which Series B Notes shall not bear
the legend set forth in (i) above, and the Registrar shall rescind any
restriction on the transfer of such Series A Notes, in each case unless
the Company has notified the Registrar in writing that the Holder of such
Series A Notes is either (A) a broker-dealer, (B) a Person participating
in the distribution of the Series A Notes or (C) a Person who is an
affiliate (as defined in Rule 144A) of the Company.
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(iv) Each Global Note, whether or not a Transfer Restricted
Security, shall also bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF
A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE,
AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY
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) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("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 IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
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.
(v) Any Global Note may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Note Custodian, the
Depositary or by the National Association of Securities Dealers, Inc. in
order for the Notes to be tradable on the PORTAL Market or tradable on
Euroclear or Clearstream or as may be required for the Notes to be
tradable on any other market developed for trading of securities pursuant
to Rule 144A or Regulation S under the Securities Act or required to
comply with any applicable law or any regulation thereunder or with the
rules and regulations of any securities exchange or automated quotation
system upon which the Notes may be listed or traded or to conform with any
usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
(i) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for Certificated
Notes, redeemed, repurchased or canceled, all Global Notes shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for Certificated Notes, redeemed, repurchased or canceled, the
principal amount of
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Notes represented by such Global Notes shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction. In the
event of any transfer of any beneficial interest between the Rule 144A Global
Note and the Regulation S Global Note in accordance with the standing procedures
and instructions between the Depositary and the Note Custodian and the transfer
restrictions set forth herein, the aggregate principal amount of each of the
Rule 144A Global Note and the Regulation S Global Note shall be appropriately
increased or decreased, as the case may be, and an endorsement shall be made on
each of the Rule 144A Global Note and the Regulation S Global Note by the
Trustee or the Note Custodian, at the direction of the Trustee, to reflect such
reduction or increase.
(j) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Certificated Notes and Global
Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder 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 3.6
and 9.5 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or Global Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Certificated Notes or Global
Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required:
(a) to issue, to register the transfer of or to exchange Notes
during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.2 hereof and
ending at the close of business on the day of selection; or
(b) to register the transfer of or to exchange any Note so 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.
(vi) Prior to due presentment of 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
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registered as the absolute owner of such Note for the purpose of all payments
with respect to such Notes, and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and Global
Notes in accordance with the provisions of Section 2.2 hereof.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or either the
Company or the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Company shall issue and the Trustee, upon receipt
of an authentication order in accordance with Section 2.2 hereof, shall
authenticate a replacement Note if the Trustee's requirements for replacement of
Notes 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 Trustee and the Company may charge the Holder for their expenses
in replacing a Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.8. 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 or the Note Custodian in accordance with the provisions hereof, and
those described in this Section as not outstanding. Except as set forth in
Section 2.9 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of either of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it shall cease
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser for value.
If the principal amount of any Note is considered paid under Section
4.1 hereof, 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 shall be deemed to be no longer outstanding and shall cease to accrue
interest.
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Section 2.9. 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, the Guarantors or by any Affiliate thereof shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver of consent,
only Notes that a Responsible Officer of the Trustee knows are so owned shall be
so disregarded. The Company agrees to notify the Trustee of the existence of any
such treasury Notes or Notes owned by the Company, any Guarantor or an Affiliate
thereof.
Section 2.10. Temporary Notes.
Until Certificated Notes are ready for delivery, the Company may
prepare and the Trustee, upon receipt of an authentication order in accordance
with Section 2.2 hereof, shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of Certificated Notes, but may have such
variations as the Company considers appropriate for temporary Notes and as shall
be reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Certificated Notes in exchange
for temporary Notes.
Holders of temporary Notes shall 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 shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy all
canceled Notes in accordance with the Trustee's usual procedures. The Trustee
shall maintain a record of the destruction of all canceled Notes. Certification
of the destruction of all canceled Notes shall be delivered to the Company. The
Company may not issue new Notes to replace Notes that have been paid or that
have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, the
Company shall 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 4.1 hereof. The Company shall 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 shall fix or cause
to be fixed each such special record date and payment date, provided that no
such special record date shall 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) shall 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.
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Section 2.13. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer and
subject to Section 2.12 hereof, the Company, the Trustee, any Paying Agent, any
co-registrar and any Registrar may deem and treat the person in whose name any
Note shall be registered upon the register of Notes kept by the Registrar as the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any co-registrar or any Registrar) for the
purpose of receiving all payments with respect to such Note and for all other
purposes, and none of the Company, the Trustee, any Paying Agent, any
co-registrar or any Registrar shall be affected by any notice to the contrary.
Section 2.14. CUSIP Numbers.
The Company in issuing the Notes may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes.
Section 2.15. Designation.
The Indebtedness evidenced by the Notes and the Guarantees is hereby
irrevocably designated as "senior indebtedness" or such other term denoting
seniority for the purposes of any future Indebtedness of the Company or a
Guarantor which the Company or a Guarantor makes subordinate to any senior
indebtedness or such other term denoting seniority.
ARTICLE III.
REDEMPTION AND REPURCHASE
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the provisions of
Sections 3.7 or 3.8 hereof, it shall furnish to the Trustee, at least 30 days
but not more than 60 days before the Redemption Date, an Officers' Certificate
setting forth the Section of this Indenture pursuant to which the redemption
shall occur, the Redemption Date, the principal amount of Notes to be redeemed
and the Redemption Price.
If the Company is required to offer to repurchase Notes pursuant to
the provisions of Section 4.10 or 4.15 hereof, it shall notify the Trustee in
writing, at least 30 days but not more than 60 days before the Purchase Date, of
the Section of this Indenture pursuant to which the repurchase shall occur, the
Purchase Date, the principal amount of Notes required to be repurchased and the
Purchase Price and shall furnish to the Trustee an Officers' Certificate to the
effect that (a) the Company is required to make or has made a Net Proceeds Offer
or a Change of Control Offer, as the case may be, and (b) the conditions set
forth in Section 4.10 or 4.15 hereof, as the case may be, have been satisfied.
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If the Registrar is not the Trustee, the Company shall, concurrently
with each notice of redemption or repurchase, cause the Registrar to deliver to
the Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Notes held by each Holder.
Section 3.2. Selection of Notes.
Except as set forth below, if less than all of the Notes are to be
redeemed, the Trustee shall select the Notes or portions thereof to be redeemed
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not then
listed on a national securities exchange pro rata, by lot or by such method as
the Trustee shall deem fair and appropriate. In the event of partial redemption
by lot, the particular Notes or portions thereof to be redeemed shall be
selected, unless otherwise provided herein, not less than 25 nor more than 60
days prior to the Redemption Date by the Trustee from the outstanding Notes not
previously called for redemption.
If less than all of the Notes tendered are to be repurchased
pursuant to the provisions of Section 4.10 hereof, the Trustee shall select the
Notes or portions thereof to be repurchased in compliance with Section 4.10. In
the event of partial repurchase by lot, the particular Notes or portions thereof
to be repurchased shall be selected at the close of business of the last
Business Day prior to the Purchase Date. If less than all of the Notes tendered
are to be repurchased pursuant to the provisions of Section 3.7 or 3.8 hereof,
the Trustee shall select the Notes only pro rata or on as nearly a pro rata
basis as is practicable (subject to DTC procedures), unless such method is
otherwise prohibited.
The Trustee shall promptly notify the Company in writing of the
Notes or portions thereof selected for redemption or repurchase and, in the case
of any Note selected for partial redemption or repurchase, the principal amount
thereof to be redeemed or repurchased. Notes and portions thereof selected shall
be in amounts of $1,000 or integral multiples of $1,000; except that if all of
the Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed. No
Notes of a principal amount of $1,000 or less shall be redeemed in part.
Section 3.3. Notice of Optional or Special Redemption.
In the event Notes are to be redeemed pursuant to Section 3.7 or 3.8
hereof, at least 30 days but not more than 60 days before the Redemption Date,
the Company shall mail a notice of redemption to each Holder whose Notes are to
be redeemed in whole or in part, with a copy to the Trustee.
The notice shall identify the Notes or portions thereof to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
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(c) 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;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price, Additional Interest, if any,
and, unless the Redemption Date is after a record date and or before the
succeeding interest payment date, accrued interest thereon to the
Redemption Date;
(f) that, unless the Company defaults in making the redemption
payment, interest and any Additional Interest on Notes called for
redemption will cease to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Notes is to receive payment of
the Redemption Price, any Additional Interest and, unless the Redemption
Date is after a record date and on or before the succeeding interest
payment date, accrued interest thereon to the Redemption Date upon
surrender to the Paying Agent of the Notes redeemed;
(g) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portions thereof) to be
redeemed, as well as the aggregate principal amount of the Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption; and
(h) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided that the Company
shall deliver to the Trustee, at least 40 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 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes or portions thereof
called for redemption become due and payable on the Redemption Date at the
Redemption Price. Upon surrender to any Paying Agent, such Notes or portions
thereof shall be paid at the Redemption Price, plus Additional Interest, if any,
and accrued interest to the Redemption Date; provided, however, that
installments of interest which are due and payable on or prior to the Redemption
Date shall be payable to the Holders of such Notes, registered as such, at the
close of business on the relevant record date for the payment of such
installment of interest.
Section 3.5. Deposit of Redemption Price or Purchase Price.
On or before each Redemption Date or Purchase Date, the Company
shall irrevocably deposit with the Trustee or with the Paying Agent money
sufficient to pay the aggregate amount due
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on all Notes to be redeemed or repurchased on that date, including without
limitation any accrued and unpaid interest and Additional Interest, if any, to
the Redemption Date or Repurchase Date. The Company, the Trustee or the Paying
Agent shall promptly return to the Company any money not required for that
purpose.
Unless the Company defaults in making such payment, interest and any
Additional Interest on the Notes to be redeemed or repurchased will cease to
accrue on the applicable Redemption Date or Purchase Date, whether or not such
Notes are presented for payment. If any Note called for redemption shall not be
so paid upon surrender because of the failure of the Company to comply with the
preceding paragraph, interest will be paid on the unpaid principal, from the
applicable Redemption Date or Purchase Date until such principal is paid, and on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.1 hereof.
Section 3.6. Notes Redeemed or Repurchased in Part.
Upon surrender of a Note that is redeemed or repurchased in part,
the Company shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to portion of the
Note surrendered that is not to be redeemed or repurchased.
Section 3.7. Optional Redemption.
The Company may redeem any or all of the Notes at any time on or
after June 15, 2006 at the Redemption Prices set forth in the Notes (an
"Optional Redemption"). Any redemption pursuant to this Section 3.7 shall be
made pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Section 3.8. Special Redemption.
In the event the Company completes one or more Public Equity
Offerings on or before June 15, 2005, the Company, at its option, may use the
net cash proceeds from any such Public Equity Offering to redeem up to 35% of
the original principal amount of the Notes (a "Special Redemption") at a
Redemption Price of 109.750% of the principal amount thereof, together with
accrued and unpaid interest and Additional Interest, if any, to the date of
redemption, provided, however, that at least 65% of the original principal
amount of the Notes issued will remain outstanding immediately after each such
Special Redemption; and provided, further, that such Special Redemption shall
occur within 120 days after the date of the closing of the applicable Public
Equity Offering. Any redemption pursuant to this Section 3.8 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof.
Section 3.9. Repurchase upon Change of Control Offer.
In the event that, pursuant to Section 4.15 hereof, the Company
shall be required to commence a Change of Control Offer, it shall follow the
procedures specified below.
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The Change of Control Offer shall remain open for a period from the
date of the mailing of the notice of the Change of Control Offer described in
the next paragraph until a date determined by the Company which is at least 30
but no more than 45 days from the date of mailing of such notice and no longer,
except to the extent that a longer period is required by applicable law (the
"Change of Control Offer Period"). On the Purchase Date, which shall be no later
than the last day of the Change of Control Offer Period, the Company shall
purchase the principal amount of Notes properly tendered in response to the
Change of Control Offer. Payment for any Notes so purchased shall be made in the
same manner as interest payments are made.
Within 30 days following any Change of Control, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Change of Control Offer. The Change of
Control shall be made to all Holders. The notice, which shall govern the terms
of the Change of Control Offer, shall state:
(a) the transaction or transactions that constitute the Change of
Control, providing information, to the extent publicly available,
regarding the Person or Persons acquiring control, and stating that the
Change of Control Offer is being made pursuant to this Section 3.9 and
Section 4.15 hereof and that, to the extent lawful, all Notes tendered
will be accepted for payment;
(b) the Purchase Price, the last day of the Change of Control Offer
Period, and the Purchase Date;
(c) that any Note not properly tendered or otherwise not accepted
for repurchase will continue to accrue interest and Additional Interest,
if any;
(d) that, unless the Company defaults in the payment of the amount
due on the Purchase Date, all Notes or portions thereof accepted for
repurchase pursuant to the Change of Control Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;
(e) that Holders electing to have any Notes purchased pursuant to
the Change of Control Offer will be required to tender the Notes, with the
form entitled Option of Holder To Elect Purchase on the reverse of 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 not later than the third Business Day preceding
the Purchase Date;
(f) 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 Change of Control Offer Period, a
telegram, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for repurchase, and a
statement that such Holder is withdrawing his election to have the Notes
redeemed in whole or in part; and
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(g) that Holders whose Notes are being repurchased only in part will
be issued new Notes equal in principal amount to the portion of the Notes
tendered (or transferred by book-entry transfer) that is not to be
repurchased, which portion must be equal to $1,000 in principal amount or
an integral multiple thereof.
On or before the Purchase Date, the Company shall to the extent
lawful, (i) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Purchase Price, together with accrued and unpaid interest
and Additional Interest, if any, thereon to the Purchase Date in respect of all
Notes or portions thereof so tendered and accepted for repurchase and (iii)
deliver or cause to be delivered to the Trustee the Notes so accepted together
with an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being repurchased by the Company. The Paying Agent shall
promptly (but in any case not later than five days after the Purchase Date) mail
to each Holder of Notes so repurchased the amount due in connection with such
Notes, and the Company shall promptly issue a new Note, and the Trustee, upon
written request from the Company in the form of an Officers' Certificate shall
authenticate and mail or deliver (or cause to transfer by book entry) to each
relevant Holder a new Note, in a principal amount equal to any unpurchased
portion of the Notes surrendered to the Holder thereof; provided that each such
new Note shall be in a principal amount of $l,000 or and integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Purchase Date.
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
Additional Interest, if any, in each case to the Purchase Date, shall 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 shall be payable to Holders pursuant to
the Change of Control Offer.
Section 3.10. Repurchase upon Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence a Net Proceeds Offer, it shall follow the
procedures specified below.
The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Net Proceeds Offer. The Net
Proceeds Offer shall be made to all Holders. Each Net Proceeds Offer will be
mailed to the record Holders as shown on the register of Holders within 30 days
following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and
shall comply with the procedures set forth in this Indenture. Upon receiving
notice of the Net Proceeds Offer, Holders may elect to tender their Notes in
whole or in part in integral multiples of $1,000 in exchange for cash. A Net
Proceeds Offer shall remain open for a period of 20 business days or such longer
period as may be required by law. The notice, which shall govern the terms of
the Net Proceeds Offer, shall state:
(a) that the Net Proceeds Offer is being made pursuant to this
Section 3.10 and Section 4.10 hereof;
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(b) the Net Proceeds Offer Amount, the Purchase Price and the
Purchase Date;
(c) that any Note not properly tendered or otherwise not accepted
for repurchase shall continue to accrue interest and Additional Interest,
if any;
(d) that, unless the Company defaults in the payment of the amount
due on the Purchase Date, all Notes or portions thereof accepted for
repurchase pursuant to the Net Proceeds Offer shall cease to accrue
interest and Additional Interest, if any, after the Purchase Date;
(e) that Holders electing to have any Notes repurchased pursuant to
any Net Proceeds Offer shall be required to tender the Notes, with the
form entitled Option of Holder To Elect Purchase on the reverse of 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 prior to the close of business on the third
Business Day preceding the Purchase Date;
(f) 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 Purchase Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes delivered for repurchase and a statement that such Holder is
withdrawing his election to have such Notes repurchased in whole or in
part; and
(g) that, to the extent Holders properly tender Notes in an amount
exceeding the Net Proceeds Offer Amount, the tendered Notes will be
purchased pro rata based on the aggregate amounts of Notes tendered (and
the Trustee shall select the tendered Notes of tendering Holders pro rata
based on the amount of Notes tendered.
On or before the Purchase Date, the Company shall to the extent
lawful, (i) accept for payment, pro rata in accordance with this Indenture to
the extent necessary, the Net Proceeds Offer Amount of Notes or portions thereof
properly tendered pursuant to the Net Proceeds Offer, or if less than the Net
Proceeds Offer Amount has been tendered, all Notes properly tendered, (ii)
deposit with the Paying Agent an amount equal to the Purchase Price, plus
accrued and unpaid interest and Additional Interest, if any, thereon to the
Purchase Date in respect of all Notes or portions thereof so tendered and
accepted for repurchase and (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being repurchased by the
Company. The Paying Agent shall promptly (but in any case not later than five
days after the Purchase Date) mail to each Holder of Notes so repurchased the
amount due in connection with such Notes, and the Company shall promptly issue a
new Note, and the Trustee, upon written request from the Company in the form of
an Officers' Certificate shall authenticate and mail or deliver such new Note to
such Holder, in a principal amount equal to any unpurchased portion to the
Holder thereof; provided that each such new Note shall be in a principal amount
of $1,000 or an integral multiple thereof. The Company shall publicly announce
the results of the Net Proceeds Offer on or as soon as practicable after the
Purchase Date.
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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
Additional Interest, if any, in each case to the Purchase Date, shall 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 shall be payable to Holders to the Net
Proceeds Offer.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company shall pay or cause to be paid the principal, Redemption
Price and Purchase Price of, and interest on the Notes on the dates, in the
amounts and in the manner provided herein and in the Notes. Principal,
Redemption Price, Purchase Price and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company, holds as of 12:00 noon
Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay the aggregate amount
then due. The Company shall pay all Additional Interest, if any, on the dates,
in the amounts and in the manner set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal, Redemption Price
and Purchase Price at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, 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 shall give prompt 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 shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate 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 shall in any manner relieve the
Company of its obligations to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Company shall give
prompt written
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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
2.3. The Trustee may resign such agency at any time by giving written notice to
the Company no later than 30 days prior to the effective date of such
resignation.
Section 4.3. Reports.
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company will furnish to
the Trustee:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries and, with
respect to the annual information only, a report thereon by the Company's
certified independent accountants; and
(ii) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports,
in each case within the time periods specified in the Commission's rules and
regulations. The Company shall at all times comply with TIA Section 314(a).
In addition, following the consummation of the Exchange Offer,
whether or not required by the rules and regulations of the Commission, the
Company shall use its reasonable best efforts to file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, the
Company has agreed that, for so long as any Notes remain outstanding, it 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.
Section 4.4. Compliance Certificate.
The Company and each Guarantor shall deliver to the Trustee, within
105 days after the end of each fiscal year, an Officers' Certificate further
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 in all
material respects, 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 in all material
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respects and is not in Default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (and, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events of
Default) of which he or she may have knowledge, 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.
The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, promptly upon any Officer of the Company becoming aware
of any Default or Event of Default an Officers' Certificate specifying such
Default or Event of Default.
Section 4.5. Taxes.
The Company shall pay or discharge, and shall cause each of its
Subsidiaries to pay or discharge, 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 of the Notes.
Section 4.6. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it shall 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 (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants shall it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
such law has not been enacted.
Section 4.7. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution (other than
dividends or distributions payable in Qualified Capital Stock of the
Company) on or in respect of shares of the Company's Capital Stock to
holders of such Capital Stock in their capacity as such;
(2) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock;
(3) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Subordinated Indebtedness; or
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(4) make any Investment (other than Permitted Investments) (each of
the foregoing actions set forth in clauses (1), (2), (3) and (4) being
referred to as a "Restricted Payment");
if at the time of such Restricted Payment or immediately after giving effect
thereto,
(i) a Default or an Event of Default shall have occurred and be
continuing;
(ii) the Company is not able to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.9 hereof; or
(iii) the aggregate amount of Restricted Payments (including such
proposed Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purpose, if other than in cash, being the fair market
value of such property shall exceed the sum (the "Restricted Payments
Basket") of:
(v) $5.0 million;
(w) 50% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100% of
such loss) of the Company earned subsequent to the Issue Date and on
or prior to the date the Restricted Payment occurs (the "Reference
Date") (treating such period as a single accounting period); plus
(x) 100% of the aggregate net cash proceeds received by the
Company from any Person (other than a Subsidiary of the Company)
from the issuance and sale subsequent to the Issue Date and on or
prior to the Reference Date of Qualified Capital Stock of the
Company or warrants, options or other rights to acquire Qualified
Capital Stock of the Company (but excluding any debt security that
is convertible into, or exchangeable for, Qualified Capital Stock)
(excluding any net cash proceeds from a Public Equity Offering to
the extent used to redeem the Notes in compliance with the
provisions of Section 3.8 hereof); plus
(y) without duplication of any amounts included in clause
(iii)(x) above, 100% of the aggregate net cash proceeds of any
equity contribution received by the Company from a holder of the
Company's Capital Stock (excluding any net cash proceeds from a
Public Equity Offering to the extent used to redeem the Notes in
compliance with the provisions set forth under Section 3.8 hereof;
plus
(z) without duplication, the sum of:
(1) the aggregate amount returned in cash on or with
respect to Investments (other than Permitted Investments) made
subsequent to the Issue Date whether through interest
payments, principal payments, dividends or other distributions
or payments (including royalty payments);
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(2) the net cash proceeds received by the Company or any
of its Restricted Subsidiaries from the disposition of all or
any portion of such Investments (other than to a Restricted
Subsidiary of the Company); and
(3) any dividends paid in cash received by the Company
or a Restricted Subsidiary after the Issue Date from any
Unrestricted Subsidiary to the extent such dividends were not
otherwise included in Consolidated Net Income; and
(4) upon redesignation of an Unrestricted Subsidiary as
a Restricted Subsidiary, the fair market value of such
Subsidiary;
provided, however, that the sum of clauses (1), (2), (3) and (4)
above shall not exceed the aggregate amount of all such Investments
made subsequent to the Issue Date.
The foregoing provisions of this Section do not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of such dividend if the dividend would have been permitted on
the date of declaration;
(2) if no Default or Event of Default shall have occurred and be
continuing, the acquisition of any shares of Capital Stock of the Company,
either (i) solely in exchange for shares of Qualified Capital Stock of the
Company or (ii) through the application of net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company;
(3) if no Default or Event of Default shall have occurred and be
continuing, the repurchase, redemption or other repayment of any
Subordinated Indebtedness either (i) solely in exchange for shares of
Qualified Capital Stock of the Company, or (ii) through the application of
net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of (a) shares of Qualified Capital Stock of the
Company or (b) Refinancing Indebtedness;
(4) if no Default or Event of Default shall have occurred and be
continuing, repurchases by the Company of Common Stock of the Company from
employees of the Company or any of its Subsidiaries or their authorized
representatives upon the death, disability or termination of employment of
such employees, in an aggregate amount not to exceed $2.5 million in any
calendar year; and
(5) the payment of a dividend on the Company's Common Stock (other
than Disqualified Capital Stock) of up to $.04 per share per quarter;
provided that such amount per share shall be reduced or increased, as the
case may be, in proportion to any stock splits, reverse stock splits or
dividends paid in Common Stock so that the aggregate dividend payable
immediately following such split or dividend paid in Common Stock is no
greater than the aggregate dividend payable before such split or dividend
paid in Common Stock.
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In determining the aggregate amount of the Restricted Payments
Basket, amounts expended pursuant to the immediately preceding clauses (1), (4)
and (5) shall be included in such calculation. No issuance and sale of Qualified
Capital Stock pursuant to the immediately preceding clause (2) or (3) shall
increase the Restricted Payments Basket, except to the extent the proceeds
thereof exceed the amounts used to effect the transactions described therein.
Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or restriction on
the ability of any such Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on or in respect
of its Capital Stock;
(2) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary of the
Company; or
(3) transfer any of its property or assets to the Company or any
other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of:
(a) applicable law;
(b) this Indenture, the Notes and the Guarantees;
(c) customary non-assignment provisions of any contract or any lease
governing a leasehold interest of the Company or any Restricted Subsidiary
of the Company;
(d) any agreement or instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;
(e) agreements or instruments existing on the Issue Date to the
extent and in the manner such encumbrances and restrictions are in effect
on the Issue Date, including without limitation the Credit Agreement;
(f) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted Subsidiary
pending its sale or other disposition;
(g) Liens securing Indebtedness that limit the right of the debtor
to dispose of the assets subject to such Lien;
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(h) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
stock sale agreements and other similar agreements entered into in the
ordinary course of business;
(i) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(j) customary provisions in agreements with respect to Permitted
Joint Ventures;
(k) any instrument governing Indebtedness of a Foreign Restricted
Subsidiary;
(l) any encumbrance or restriction of a Securitization Entity
effected in connection with a Qualified Securitization Transaction; and
(m) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred
to in clause (b), (d), (e), (g), (k) or (l) above or any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof; provided, however, that the
provisions relating to such encumbrance or restriction contained in any
such Indebtedness or amendments, etc. are no less favorable to the Company
in any material respect (as determined by the senior management of the
Company in respect of Indebtedness less than $10.0 million or the Board of
Directors of the Company in respect of Indebtedness of $10.0 million or
greater, in each case in their reasonable and good faith judgment) than
the provisions relating to such encumbrance or restriction contained in
agreements referred to in such clause (b), (d), (e), (g), (k) or (l).
Section 4.9. Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Company or any of
its Restricted Subsidiaries that is or, upon such incurrence, becomes a
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness) and any Restricted Subsidiary of the Company that is not or will
not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness,
in each case if on the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio
of the Company is (i) greater than 2.0 to 1.0. The Company and its Restricted
Subsidiaries may incur Permitted Indebtedness without complying with the
restrictions set forth above.
(b) The Company will not, and will not permit any Guarantor to,
directly or indirectly, incur any Indebtedness which by its terms (or by the
terms of any agreement governing such Indebtedness) is expressly subordinated in
right of payment to any other Indebtedness of the Company or such Guarantor, as
the case may be, unless such Indebtedness is also by its terms (or by the terms
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of any agreement governing such Indebtedness) made expressly subordinate to the
Notes or the applicable Guarantee, as the case may be, to the same extent and in
the same manner as such Indebtedness is subordinated to other Indebtedness of
the Company or such Guarantor, as the case may be.
Section 4.10. Limitation on 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 applicable Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets sold or otherwise disposed
of;
(2) at least 75% of the consideration received by the Company or the
Restricted Subsidiary, as the case may be, from such Asset Sale shall be
in the form of cash or Cash Equivalents and is received at the time of
such disposition; and
(3) upon the consummation of an Asset Sale, the Company shall apply,
or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof either:
(a) to prepay any Indebtedness under the Credit Agreement and
effect a permanent reduction in the availability thereunder;
(b) to make an Investment in properties and assets that
replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used, or Capital
Stock of a Person engaged, in a Permitted Business ("Replacement
Assets"); and/or
(c) a combination of prepayment and investment permitted by
the foregoing clauses (3)(a) and (3)(b).
(B) On the 366th day after an Asset Sale or such earlier date, if
any, as the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of this Section
(each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Net Proceeds Offer
Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the paragraph
(A) of this Section (each a "Net Proceeds Offer Amount") shall be applied by the
Company or such Restricted Subsidiary to make an offer to purchase (the "Net
Proceeds Offer") pursuant to Section 3.10 and this Section 4.10 to all Holders
on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than
45 days following the applicable Net Proceeds Offer Trigger Date, from all
Holders pro rata, that amount of Notes equal to the Net Proceeds Offer Amount at
a price equal to 100% of the principal amount of the Notes to be purchased, plus
accrued and unpaid interest thereon, if any, to the date of purchase.
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(C) If at any time any non-cash consideration received by the
Company or any Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash
consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this Section.
(D) The Company may defer the Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $20.0
million resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of $20.0
million, shall be applied as required pursuant to this Section).
(E) In the event of the transfer of substantially all (but not all)
of the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.1 hereof, which
transaction does not constitute a Change of Control, the successor corporation
shall be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this Section, and
shall comply with the provisions of this Section with respect to such deemed
sale as if it were an Asset Sale. In addition, the fair market value of such
properties and assets of the Company or its Restricted Subsidiaries deemed to be
sold shall be deemed to be Net Cash Proceeds for purposes of this Section.
(F) Notwithstanding paragraphs (A) and (B) of this Section 4.10, the
Company and its Restricted Subsidiaries will be permitted to consummate an Asset
Sale without complying with such paragraphs to the extent that:
(i) at least 75% of the consideration for such Asset Sale
constitutes Replacement Assets; and
(ii) such Asset Sale is for fair market value; provided that any
cash or Cash Equivalents received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Sale permitted to be consummated
under this paragraph shall constitute Net Cash Proceeds subject to the
provisions of paragraphs (A) and (B) of this Section 4.10.
(G) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.10, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.10 hereof by virtue thereof.
Section 4.11. Limitations on Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of
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any service) with, or for the benefit of, any of its Affiliates (each an
"Affiliate Transaction"), other than (x) Affiliate Transactions permitted under
the fourth paragraph of this Section and (y) Affiliate Transactions on terms
that are no less favorable than those that might reasonably have been obtained
in a comparable transaction at such time on an arm's-length basis from a Person
that is not an Affiliate of the Company or such Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a fair market value in excess of (a) $5.0
million shall be approved by senior management of the Company or such Restricted
Subsidiary (or, where such senior management is a proposed party to such
Affiliate Transaction, the Board of Directors of the Company or such Restricted
Subsidiary), as the case may be, such approval to be evidenced by an Officers'
Certificate stating that such senior management or Board of Directors has
determined that such transaction complies with the foregoing provisions; and (b)
$10.0 million shall be approved by the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be, such approval to be evidenced by a
Board Resolution stating that such senior management or Board of Directors has
determined that such transaction complies with the foregoing provisions.
If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value of more
than $15.0 million, the Company or such Restricted Subsidiary, as the case may
be, shall, prior to the consummation thereof, obtain a favorable opinion as to
the fairness of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, issued by an Independent Financial Advisor and file the
same with the Trustee.
The restrictions set forth in the first paragraph of this Section
4.11 shall not apply to:
(1) reasonable fees and compensation paid to and indemnity and
reimbursement provided on behalf of officers, directors, employees or
consultants of the Company or any Restricted Subsidiary of the Company as
determined in good faith by the Company's Board of Directors or senior
management;
(2) any employment agreement entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business;
(3) the grant of stock options, restricted stock or similar rights
to the Company's or any of the Restricted Subsidiaries' employees,
directors, officers and consultants pursuant to plans approved by the
Board of Directors of the Company;
(4) loans or advances to employees or consultants in the ordinary
course of business, consistent with past practices;
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(5) transactions exclusively between or among the Company and any of
its Restricted Subsidiaries or exclusively between or among such
Restricted Subsidiaries, provided such transactions are not otherwise
prohibited by this Indenture;
(6) transactions exclusively between or among the Company or any of
its Restricted Subsidiaries and a Permitted Joint Venture in the ordinary
course of business and customary for transactions of such type, provided
such transactions are not otherwise prohibited by this Indenture;
(7) any agreement as in effect as of the Issue Date or any amendment
thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) in any replacement agreement thereto so long as any
such amendment or replacement agreement is not more disadvantageous to the
Holders in any material respect than the original agreement as in effect
on the Issue Date as reasonably determined by the Board of Directors or
senior management of the Company;
(8) transactions effected as part of a Qualified Securitization
Transaction; and
(9) Restricted Payments, Permitted Investments or Permitted Liens
permitted by this Indenture.
Section 4.12. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens (other than Permitted Liens) of any kind
against or upon any property or assets of the Company or any of its Restricted
Subsidiaries whether owned on the Issue Date or acquired after the Issue Date,
or any proceeds therefrom, or assign or otherwise convey any right to receive
income or profits therefrom unless:
(1) in the case of Liens securing Subordinated Indebtedness, the
Notes are secured by a Lien on such property, assets, proceeds, income or
profits that is senior in priority to such Liens; and
(2) in all other cases, the Notes are equally and ratably secured by
a Lien on such property, assets, proceeds, income or profits.
In the event that any Lien the existence of which gives rise to a
Lien securing the Notes pursuant to the provisions of this Section ceases to
exist, the Lien securing the Notes required by this Section shall automatically
be released and the Trustee shall execute appropriate documentation.
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Section 4.13. Continued Existence.
Subject to Article V hereof, the each of Company and the Guarantors
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its corporate or other existence in accordance with the
organizational documents (as the same may be amended from time to time) of the
Company or such Guarantor and (ii) the material rights (charter and statutory),
licenses and franchises of the Company or such Guarantor, except to the extent
that the applicable Board of Directors determines in good faith that the
preservation of such right, license or franchise is no longer necessary or
desirable in the conduct of the business of the Company or such Guarantor and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 4.14. Insurance Matters.
The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company, are adequate and appropriate for the conduct of the business of
the Company and its Subsidiaries in a prudent manner, with reputable insurers or
with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be either (i) consistent with past practices of the Company or
the applicable Subsidiary or (ii) customary, in the reasonable, good faith
opinion of the Company, for corporations similarly situated in the industry,
unless the failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole.
Section 4.15. Offer to Repurchase upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Notes
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes (a "Change of
Control Offer") at a Purchase Price in cash equal to 101% of the aggregate
principal amount thereof, together with accrued and unpaid interest and
Additional Interest, if any, thereon to the Purchase Date. The Change of Control
Offer shall be made in compliance with the applicable procedures set forth in
Article III hereof and shall include all instructions and materials necessary to
enable Holders to tender their Notes.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if 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 Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations to the extent
such laws and regulations are applicable in connection with the repurchase of
Notes pursuant to a Change of Control Offer. To the extent that the provisions
of any securities laws or regulations conflict with this Section 4.15, the
Company
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shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.15 by virtue
hereof.
Section 4.16. Additional Subsidiary Guarantees.
If the Company or any of its Restricted Subsidiaries transfers or
causes to be transferred, in one transaction or a series of related
transactions, any assets having a book value in excess of $2.0 million to any
Domestic Restricted Subsidiary that is not a Guarantor, or if the Company or any
of its Restricted Subsidiaries shall organize, acquire or otherwise invest in
another Domestic Restricted Subsidiary having total assets with a book value in
excess of $2.0 million, then such transferee or acquired or other Restricted
Subsidiary shall:
(1) execute and deliver to the Trustee a supplemental indenture in
form reasonably satisfactory to the Trustee pursuant to which such
Restricted Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes, this Indenture and the Registration Rights
Agreement on the terms set forth in this Indenture; and
(2) deliver to the Trustee an Opinion of Counsel that such
supplemental indenture has been duly authorized, executed and delivered by
such Restricted Subsidiary and constitutes a legal, valid, binding and
enforceable obligation of such Restricted Subsidiary.
Thereafter, such Restricted Subsidiary shall be a Guarantor for all purposes of
this Indenture.
Section 4.17. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes 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 or is
paid to all Holders of the Notes 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. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries that
are not Guarantors to issue any Preferred Stock (other than to the Company or to
a Wholly Owned Restricted Subsidiary of the Company) or permit any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company) to own
any Preferred Stock of any Restricted Subsidiary of the Company that is not a
Guarantor.
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ARTICLE V.
SUCCESSORS
Section 5.1. Merger, Consolidation and Sale of Assets.
The Company will not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(1) either:
(a) the Company shall be surviving or continuing corporation;
or
(b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, transfer, lease, conveyance or
other disposition the properties and assets of the Company and of
the Company's Restricted Subsidiaries substantially as an entirety
(the "Surviving Entity"):
(x) shall be a corporation organized and validly
existing under the laws of the United States or any state
thereof or the District of Columbia; and
(y) shall expressly assume, by supplemental indenture
(in form and substance reasonably satisfactory to the Trustee
in all respects), executed and delivered to the Trustee, the
due and punctual payment of the principal of, and premium, if
any, and interest on all of the Notes and the performance of
every covenant of the Notes, this Indenture and the
Registration Rights Agreement on the part of the Company to be
performed or observed;
(2) except in the case of a consolidation or merger of the Company
with or into a Wholly Owned Restricted Subsidiary, or a sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the Company's assets to a Wholly Owned Restricted Subsidiary,
immediately after giving effect to such transaction and the assumption
contemplated by clause (1)(b)(y) above (including giving effect to any
Indebtedness (including Acquired Indebtedness) incurred or anticipated to
be incurred in connection with or in respect of such transaction), the
Company or such Surviving Entity, as the case may be, shall be able to
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.9 hereof;
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(3) immediately before and immediately after giving effect to
such transaction and the assumption contemplated by clause (1)(b)(y)
above (including, without limitation, giving effect to any Indebtedness
(including Acquired Indebtedness) incurred or anticipated to be
incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing; and
(4) the Company or the Surviving Entity shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment, transfer,
lease, conveyance or other disposition and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture comply with the applicable provisions of this Indenture and
that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with the
foregoing in which the Company is not the continuing corporation, the Surviving
Entity formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Notes, this Indenture and the Registration Rights Agreement with the same
effect as if such Surviving Entity had been named as such.
Each Guarantor (other than any Guarantor whose Guarantee is to
be released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.10
hereof) will not, and the Company will not cause or permit any Guarantor to,
consolidate with or merge with or into any Person other than the Company or any
other Guarantor unless:
(1) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) or to which such sale, lease,
conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States or any state
thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the
obligations of the Guarantor under the Guarantee, this Indenture and
the Registration Rights Agreement;
(3) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
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(4) immediately after giving effect to such transaction and
the use of any net proceeds therefrom on a pro forma basis, the Company
could satisfy the provisions of clause (2) of this Section 5.1.
Any merger or consolidation, or sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
property or assets, (a) of a Guarantor with and into the Company (with the
Company being the surviving entity) or another Guarantor or (b) of the Company
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction in the United States or any state thereof or the
District of Columbia need only comply with clause (4) of the first paragraph of
this Section 5.1.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.1 hereof, the Surviving Entity shall
succeed to and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such Surviving
Entity had been named as the Company herein.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
Each of the following constitutes an "Event of Default":
(a) the failure to pay interest on any Note when the same
becomes due and payable and the default continues for a period of 30
days;
(b) the failure to pay the principal of any Note, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds
Offer);
(c) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default
continues for a period of 45 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes (except in the case of a
default with respect to Section 5.1 hereof, which will constitute an
Event of Default with such notice requirement but without such passage
of time requirement);
(d) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary
of the Company, or the acceleration of the final stated maturity of
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any such Indebtedness, if the aggregate principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at final maturity
or which has been accelerated, aggregates $20.0 million or more at any
time;
(e) one or more judgments in an aggregate amount in excess of
$20.0 million shall have been rendered against the Company or any of
its Restricted Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable;
(f) the Company or any Significant Subsidiary of the Company:
(i) commences a voluntary case under any Bankruptcy Law,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian or receiver
of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing its inability to pay its debts as they
become due; or
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief in an involuntary case against the Company
or any Significant Subsidiary of the Company;
(ii) appoints a custodian or receiver of the Company or any
Significant Subsidiary or for all or substantially all of the property
of any of the foregoing;
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(h) any Guarantee of a Significant Subsidiary ceases to be in
full force and effect or any Guarantee of a Significant Subsidiary is
declared to be null and void and unenforceable or any Guarantee of a
Significant Subsidiary is found to be invalid or any Guarantor that is
a Significant Subsidiary denies its liability under its Guarantee
(other than by reason of release of a Guarantor in accordance with the
terms of this Indenture).
Section 6.2. Acceleration.
If any Event of Default (other than an Event of Default
specified in clause (f) or (g) of Section 6.1 hereof with respect to the
Company) shall occur and be continuing, the Trustee or the Holders of at least
25% in principal amount of the then outstanding Notes by written notice to the
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Company (and the Trustee, if such notice is given by such Holders) may declare
the principal of and accrued and unpaid interest on the Notes to be due and
payable immediately, which notice shall specify the respective Events of Default
and that it is a "Notice of Acceleration". Upon any such declaration, the entire
principal amount of, and accrued and unpaid interest and Additional Interest, if
any, on the Notes shall become immediately due and payable.
Notwithstanding the foregoing, if an Event of Default
specified in clause (f) or (g) of Section 6.1 hereof with respect to the Company
occurs and is continuing, then all unpaid principal of, and premium, if any, and
accrued and unpaid interest on all of the outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
The Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Company and the
Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration and its consequences:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due
solely because of the acceleration;
(3) to the extent the payment of such interest is lawful, if
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of
acceleration, has been paid; and
(4) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances.
No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereto.
Section 6.3. 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, if
any, interest or Additional Interest, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
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, and
any recovery or judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Notes.
A delay or omission by the Trustee or any Holder 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.
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Section 6.4. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes may
waive any existing or past Default or Event of Default under this Indenture, and
its consequences, except a default in the payment of the principal of or
interest on any Notes. 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 6.5. Control by Majority.
Holders of a majority in 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 applicable law or this Indenture that the Trustee
reasonably determines may be unduly prejudicial to the rights of other Holders
of Notes or that may subject the Trustee to personal liability and shall be
entitled to the benefit of Sections 7.1(c)(iii) and 7.1(e) hereof.
Section 6.6. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the 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.
Section 6.7. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, interest or Additional Interest, if any, on the Note, on or after the
respective due dates thereon (including in connection with an offer to
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repurchase), 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
written consent of such Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.l(a) or (b)
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 Additional Interest, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and Additional Interest, if any, and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expense, disbursements and advances of
the Trustee, its agents and counsel.
Section 6.9. 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 (including
accountants, experts or such other processionals as the Trustee deems necessary,
advisable or appropriate) and counsel and the Holders of the Notes 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 7.7 hereof. 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 7.7 hereof 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, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.7 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
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Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, Purchase Price, Redemption Price and Additional
Interest, if any, and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, Purchase Price, Redemption Price and Additional Interest, if
any, and interest, respectively; and
Third: to the Company, the Guarantors or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a special record date and payment date for any payment to
Holders of Notes 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 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall 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 thereof, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the TIA 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 or the TIA against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, without investigation, as to the truth or the
statements and the correctness of the opinions expressed therein, upon
and statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the
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certificates and opinions to determine whether or not they conform on
their face 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:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall 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
(iii) the Trustee shall 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 6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
this Section 7.1.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, pursuant to the provisions of this
Indenture, including, without limitation, Section 6.5 thereof, unless such
Holder shall have offered to the Trustee security and indemnity satisfactory to
it against any loss, liability or expense which might be incurred by it in
compliance with such request or direction.
(f) The Trustee shall 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 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting 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 refrain from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall 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 and Opinions of
Counsel shall 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, accountants,
experts and such other professionals as the Trustee deems necessary, advisable
or appropriate and shall not be
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responsible for the misconduct or negligence of any attorney, accountant, expert
or other such professional appointed with due care.
(d) The Trustee shall 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 shall be sufficiently
evidenced by a written order signed by two Officers of the Company.
(f) The Trustee shall not be charged with knowledge of any
Default or Event of Default under Section 6.1 hereof (other than under Section
6.1(a) (subject to the following sentence) or Section 6.1(b) hereof) unless
either (i) a Responsible Officer shall have actual knowledge thereof, or (ii)
the Trustee shall have received notice thereof in accordance with Section 12.2
hereof from the Company or any Holder of the Notes. The Trustee shall not be
charged with knowledge of the Company's obligation to pay Additional Interest,
or the cessation of such obligation, unless the Trustee receives written notice
thereof from the Company or any Holder.
Section 7.3. 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 within the meaning of the TIA it must eliminate such conflict within 90
days, apply (subject to the consent of the Company) to the Commission for
permission to continue as trustee 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 hereof.
Section 7.4. Trustee's Disclaimer.
The Trustee shall 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 shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall 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 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing, the
Trustee shall mail to Holders of Notes a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default in
payment on any Note (including the failure to make a mandatory repurchase
pursuant hereto), the Trustee may withhold the notice if and so long as a
committee of its Responsible
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Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.
Section 7.6. Reports by Trustee to Holders of the Notes.
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 shall mail to the Holders of the Notes 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
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.7. Compensation, Reimbursement and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and the rendering
by it of the services required hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by or on behalf of it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's attorneys,
accountants, experts and such other professionals as the Trustee deems
necessary, advisable or appropriate.
The Company shall 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 its duties under Section 9.6 hereof), including the costs and
expenses of enforcing this Indenture or any Guarantee against the Company or a
Guarantor (including this Section 7.7) and defending itself against or
investigating any claim (whether asserted by the Company, any Guarantor, 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 willful
misconduct. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend any
claim or threatened claim asserted against the Trustee, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
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The obligations of the Company under this Section 7.7 shall
survive the resignation or removal of the Trustee, the satisfaction and
discharge of this Indenture and the termination of this Indenture.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall 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,
Redemption Price or Purchase Price of or Additional Interest, if any, or
interest on, particular Notes. Such Lien shall survive the resignation or
removal of the Trustee, the satisfaction and discharge of this Indenture and the
termination of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or (g) hereof 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 Law.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
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 Notes of a majority in 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:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian, receiver or public officer takes charge of
the Trustee or its property for the purpose of rehabilitation,
conversation or liquidation; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the date on which the successor Trustee
takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days
after the retiring trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in 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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If the Trustee, after written request by any Holder of a Note
who has been a bona fide holder of a Note or Notes for at least six months,
fails to comply with Section 7.10, such Holder of a Note may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Company shall mail a notice of its succession to
Holder of the Notes. The retiring Trustee shall 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
7.7 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.9. 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 that is eligible under Section 7.10 hereof, the successor
corporation without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall 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 (including the District of Columbia) that is
authorized under such laws to exercise corporate trust 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 million as set forth in its most
recent published annual report of condition.
This Indenture shall 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 VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be
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applied to all outstanding Notes upon compliance with the conditions set forth
below in this Article VIII.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to the "outstanding" only
for the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in clauses (a) through (d) below, and to have satisfied all their
other obligations under such Notes 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 shall survive
until otherwise terminated or discharged hereunder:
(a) the rights of Holders to receive payments in respect of
the principal of, premium, if any, and interest on the Notes when such
payments are due;
(b) the Company's obligations with respect to the Notes
concerning issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes and the maintenance of an office or
agency for payments;
(c) the rights, powers, trust, duties and immunities of the
Trustee and the Company's obligations in connection therewith; and
(d) the Legal Defeasance provisions of this Article VIII.
Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.2, notwithstanding the prior exercise
of its option under Section 8.3 hereof.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be released from
its obligations under the covenants contained in Sections 3.9, 3.10, 4.5, 4.7
through 4.12 and 4.14 through 4.18 hereof, both inclusive, and Section 5.1(2)
with respect to the outstanding Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes
shall 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 shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any
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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 shall not constitute a
Default or an Event of Default under Section 6.1 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
hereof of the option applicable to this Section 8.3, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, Sections 6.1(c), 6.1(e) and
6.1(g) hereof shall not constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following are the conditions precedent to the application
of either Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders cash in U.S. dollars, U.S.
Government Securities, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to pay the
principal of, premium, if any, and interest on the Notes on the stated
date for payment thereof or on the applicable redemption date, as the
case may be;
(2) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee 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 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 Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that the Holders 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;
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(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit (other than a
Default or Event of Default arising in connection with the borrowing of
funds to fund the deposit referred to in clause (1) above);
(5) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this
Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound where such default would have a
material adverse effect on the Company and its Subsidiaries, taken as a
whole;
(6) the Company shall have delivered to the Trustee an
officers' certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an
officers' certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance have been complied with; and
(8) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that, assuming no intervening bankruptcy of
the Company between the date of deposit and the 91st day following the
date of deposit and that no Holder is an insider of the Company, after
the 91st day following the date of deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (2) above with respect to a Legal Defeasance need not be delivered if
all Notes not theretofore delivered to the Trustee for cancellation (1) have
become due and payable or (2) will become due and payable on the maturity date
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Section 8.5. Deposited Money and U.S. Government Securities to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.6 hereof, all money and U.S. Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5 only, the
"Trustee") pursuant to Section 8.4 hereof in respect of the outstanding Notes
shall 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 (other than the Company) as the Trustee may determine,
to the Holders of such Notes of all sums due and to become due thereon in
respect of principal or Redemption Price of, and Additional Interest, if any,
interest on,
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the Notes, that such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Securities deposited pursuant to Section 8.4 hereof 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.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or U.S. Government Securities held by it as
provided in Section 8.4 hereof 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 8.4(a) 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 8.6. Repayment to the 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, Redemption
Price or Purchase Price of, or Additional Interest, if any, or interest on any
Note and remaining unclaimed for two years after such amount has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Company for payment thereof as a general creditor,
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, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, at the expense of the Company, if required
by applicable law cause to be published once, in The New York Times and The Wall
Street Journal (national editions), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days after
the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Securities in accordance with Section 8.2 or
8.3 hereof, as the case may be, by reason of any order of judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company under this Indenture, and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may be; provided, however, that, if the Company makes any payment
with respect to any Note following 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 held by the Trustee or Paying Agent.
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ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes.
Notwithstanding Section 9.2 of this Indenture, the Company and
the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency so long as
such changes do not, in the opinion of the Trustee, adversely affect
the rights of any of the Holders in any material respect.
(b) to provide for uncertificated notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or consolidation or
sale of all or substantially all of the Company's assets pursuant to
Article V hereof;
(d) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
TIA; or
(e) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the Notes
in any material respect.
Upon the request of the Company, accompanied by a resolution
of the Board (evidenced by an Officers' Certificate) authorizing the execution
of any such amended or supplemental indenture, and upon receipt by the Trustee
of the documents described in Section 7.2 hereof, the Trustee shall join with
the Company 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 shall
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 9.2. With Consent of Holders of Notes.
Except as provided below in this Section 9.2, the Company and
the Trustee may amend or supplement this Indenture and the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for the
Notes), and, subject to Sections 6.2, 6.4 and 6.7 hereof, any existing Default
or Event of Default or compliance with any provision of this Indenture or the
Notes may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).
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Without the consent of each Holder affected, an amendment or
waiver may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes at maturity whose
Holders must consent to an amendment;
(2) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted
interest, on any Notes;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption or reduce the redemption price
therefor;
(4) make any Notes payable in money other than that stated in
the Notes;
(5) make any change in provisions of this Indenture protecting
the right of each Holder to receive payment of principal of and
interest on such Holder's Note or Notes on or after the due date
thereof or to bring suit to enforce such payment, or permitting Holders
of a majority in principal amount of Notes to waive Defaults or Events
of Default;
(6) after the Company's obligation to purchase Notes arises
hereunder, amend, change or modify in any material adverse respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control or make and consummate a Net
Proceeds Offer with respect to any Asset Sale that has been consummated
or, after such Change of Control has occurred or such Asset Sale has
been consummated, modify any of the provisions or definitions with
respect thereto;
(7) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Notes or any Guarantee
in a manner which adversely affects the Holders in any material
respect; or
(8) release any Guarantor that is a Significant Subsidiary
from any of its obligations under its Guarantee or this Indenture
otherwise than in accordance with the terms of this Indenture.
Upon the written request of the Company accompanied by a
resolution of the Board (evidenced by an Officers' Certificate) 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 of Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.2 hereof, the Trustee shall join with the Company in the
execution of such amended or supplemental indenture unless such amended or
supplemental Indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
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It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver.
Section 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental indenture that complies with the
TIA as then in effect.
Section 9.4. 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 waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and therefore binds every Holder.
Section 9.5. 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 authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.6. Trustee to Sign Amendment, Etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
approves such amendment or supplemental indenture. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive, in addition to
the documents required by Sections 12.4 and 12.5 hereof, and, subject to Section
7.1, shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that (i) the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture, (ii) no
Event of Default shall occur as a result of the execution of such Officers'
Certificate or the delivery of such Opinion of Counsel and (iii) the amended or
supplemental indenture complies with the terms of this Indenture.
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ARTICLE X.
GUARANTEE
Section 10.1. Unconditional Guarantee.
Each Guarantor hereby unconditionally guarantees (such
guarantee to be referred to herein as a "Guarantee"), on a senior basis jointly
and severally, to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that: (i) the principal of
and interest on the Notes will be promptly paid in full when due, subject to any
applicable grace period, whether at maturity, by acceleration or otherwise and
interest on the overdue principal, if any, and interest on any interest, to the
extent lawful, of the Notes 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 (ii) in case
of any extension of time of payment or renewal of any Notes or of any such other
obligations, the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set forth
in Section 10.3. Each Guarantor hereby agrees that its obligations hereunder
shall be 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 of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, and 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 covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and in this Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company, any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or any Guarantor, any amount paid by the Company or any Guarantor to the Trustee
or such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article VI, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
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Section 10.2. Severability.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.3. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 10.5, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
Section 10.4. Release of Guarantor.
(a) Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Guarantor (or all or substantially all
its assets) to a Person which is not a Subsidiary of the Company and which sale
or disposition is otherwise in compliance with Section 4.10, 5.1 and the other
terms of this Indenture, such Guarantor shall be deemed released from all
obligations under this Article X without any further action required on the part
of the Trustee or any Holder.
(b) The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by an
Officers' Certificate and Opinion of Counsel certifying as to the compliance
with this Section 10.4. Any Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article X.
(c) All Guarantees shall be of no further force and effect upon
the occurrence of a Legal Defeasance or a Covenant Defeasance, subject to
reinstatement pursuant to Section 8.7 hereof under the circumstances described
therein.
Section 10.5. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets (as
defined below) of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses in-
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curred by that Funding Guarantor in discharging the Company's obligations with
respect to the Securities or any other Guarantor's obligations with respect to
the Guarantee. "Adjusted Net Assets" of such Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Guarantee, of such Guarantor at such date and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such Guarantor
on its debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), excluding debt in respect of the Guarantee of
such Guarantor, as they become absolute and matured.
Section 10.6. Waiver of Subrogation.
Until all Obligations are paid in full, each Guarantor hereby
irrevocably waives any claims or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of such Guarantor's obligations under the Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder against the Company, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
the Notes shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders, and shall, forthwith be paid to the Trustee for the
benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of this Indenture. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the waiver
set forth in this Section 10.6 is knowingly made in contemplation of such
benefits.
Section 10.7. Execution of Guarantee.
To evidence their guarantee to the Holders set forth in this Article
X, the Guarantors hereby agree to execute the Guarantee in substantially the
form attached hereto as Exhibit C, which shall be endorsed on each Note ordered
to be authenticated and delivered by the Trustee. Each Guarantor hereby agrees
that its Guarantee set forth in this Article X shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Guarantee. Each such Guarantee shall be signed on behalf of each Guarantor by
two Officers, or an Officer and an Assistant Secretary or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall, in each case,
have been duly authorized by all requisite corporate actions) shall attest to
such Guarantee prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. Such signatures upon the Guarantee may be
by manual or facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Guarantee, and in case any such officer who shall
have signed the Guarantee shall cease to be such officer before the Note on
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which such Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
Guarantee had not ceased to be such officer of the Guarantor.
Section 10.8. Waiver of Stay, Extension or Usury Laws.
Each Guarantor 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 or extension law or any
usury law or other law that would prohibit or forgive each such Guarantor from
performing its Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) each such
Guarantor hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not 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 had been enacted.
ARTICLE XI.
SATISFACTION AND DISCHARGE
Section 11.1. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect (except as set forth below) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:
(1) either:
(a) all the Notes theretofore authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or
paid as provided in Section 2.7 and Notes for whose payment money
has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for
cancellation; or
(b) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has
irrevocably deposited or caused to be deposited with the Trustee
funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on
the Notes to the date of deposit together with irrevocable
instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case
may be;
(2) the Company has paid all other sums payable under this
Indenture by the Company; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the Company's obligations in Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7, 7.8, 12.2,
12.3 and 12.4, and the Trustee's and Paying Agent's obligations in Section 11.2
shall survive until the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Section 7.7 shall survive.
Section 11.2. Application of Trust.
All money deposited with the Trustee pursuant to Section 11.1 shall
be held in trust and, at the written direction of the Company, be invested prior
to maturity in U.S. Government Securities, and applied by the Trustee in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for the payment of which money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required by
law.
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Trust Indenture Act Controls.
If any provision hereof limits, qualifies or conflicts with a
provision of the TIA or another provision that would be required or deemed under
such Act to be part of and govern this Indenture if this Indenture were subject
thereto, the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 12.2. Notices.
Any notice or communication by the Company or the Trustee to others
is duly given if in writing and delivered in Person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
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If to the Company:
INTERMET Corporation
5445 Corporate Drive
Suite 200
Troy, Michigan 48098-2683
Attention: Chief Financial Officer
Fax: (248) 952-2501
With a copy to:
Foley & Lardner
150 W. Jefferson Avenue
Suite 1000
Detroit, Michigan 48226
Attention: Patrick Daugherty, Esq.
Fax: (313) 963-9308
If to the Trustee:
U.S. Bank National Association
Attention: Corporate Trust Administration
180 East 5th Street
Suite 200
St Paul, MN 55101
Fax: (651) 244-0711
The Company 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)
shall 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 answered back, if telexed; when receipt
acknowledged, if telecopied; 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 shall 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 shall 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 shall
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 address
receives it.
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If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 12.3. Communication by Holders of Notes with Other Holders of Notes.
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 12.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company and/or any Guarantor
to the Trustee to take any action under this Indenture, the Company and/or any
Guarantor shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.5 hereof) 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
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.5 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 12.5. 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)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
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Section 12.6. 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 12.7. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee,
incorporator, agent or stockholder or Affiliate of the Company, as such, shall
have any liability for any obligations of the Company under the Notes, this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. No past, present or future director, officer,
employee, incorporator, agent or stockholder or Affiliate of any of the
Guarantors, as such, shall have any liability for any obligations of the
Guarantors under the Guarantees, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Notes and Guarantees by accepting a Note and a Guarantee waives and releases all
such liabilities. The waiver and release are part of the consideration for
issuance of the Notes and the Guarantees. Such waiver may not be effective to
waive liabilities under the federal securities law and it is the view of the
Commission that such a waiver is against public policy.
Section 12.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
THIS INDENTURE, THE GUARANTEES AND THE NOTES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE, THE GUARANTEES AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE TRUSTEE, THE COMPANY AND EACH GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT THAT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE NOTES TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
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Section 12.9. 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 12.10. Successors.
All agreements of the Company in this Indenture and the Notes shall
bind their successors. All agreements of the Trustee in this Indenture shall
bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture, which have been inserted for
convenience of reference only, are not to be considered a part of this Indenture
and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.14. Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall pay
all reasonable costs and expenses (including attorneys' fees for the Company,
the Trustee and the Holders of the Notes) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be entitled to receive from the Company any such Officers' Certificates,
Opinions of Counsel or other documentation as it may reasonably request in
connection with any such qualification of this Indenture under the TIA.
[Signatures on following page]
-S-1-
SIGNATURES
INTERMET CORPORATION
By: /s/ John Doddridge
-----------------------------------
Name: John Doddridge
Title: Chairman of the Board and
Chief Executive Officer
By: /s/ Doretha Christoph
-----------------------------------
Name: Doretha Christoph
Title: Vice President Finance and
Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Rick Prokosch
-----------------------------------
Name: Rick Prokosch
Title: Vice President
-S-2-
THE GUARANTORS:
LYNCHBURG FOUNDRY COMPANY
NORTHERN CASTINGS CORPORATION
IRONTON IRON, INC.
INTERMET U.S. HOLDING, INC.
COLUMBUS FOUNDRY, L.P.
BY: INTERMET U.S. HOLDING, INC.
its General Partner
SUDM, INC.
ALEXANDER CITY CASTING COMPANY, INC.
TOOL PRODUCTS, INC.
SUDBURY, INC.
CAST-MATIC CORPORATION
FRISBY P.M.C., INCORPORATED
WAGNER CASTINGS COMPANY
WAGNER HAVANA, INC.
DIVERSIFIED DIEMAKERS, INC.
GANTON TECHNOLOGIES, INC.
By: /s/ Alan J. Miller
-----------------------------------
Name: Alan J. Miller
Title: Vice President and Secretary
By: /s/ Michael Skrzypczak
-----------------------------------
Name: Michael Skrzypczak
Title: Treasurer
SCHEDULE A
Guarantors of the Securities
Jurisdiction of
Name Organization
- ---- ------------
Lynchburg Foundry Company Virginia
Northern Castings Corporation Georgia
Ironton Iron, Inc. Ohio
Intermet U.S. Holding, Inc. Delaware
Columbus Foundry, L.P. Delaware
SUDM, Inc. Michigan
Alexander City Casting Company, Inc. Alabama
Tool Products, Inc. Delaware
Sudbury, Inc. Delaware
Cast-Matic Corporation Michigan
Frisby P.M.C., Incorporated Illinois
Wagner Castings Company Delaware
Wagner Havana, Inc. Delaware
Diversified Diemakers, Inc. Delaware
Ganton Technologies, Inc. Illinois
EXHIBIT A
FORM OF SERIES A NOTE
(Face of Note)
INTERMET CORPORATION
9 3/4% SENIOR NOTE DUE 2009
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO ANYONE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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.](1)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3),
OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED
- ----------
(1) To be included only if the Note is issued in global form.
INVESTOR"), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
INTERMET CORPORATION OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
INTERMET CORPORATION IF INTERMET CORPORATION SO REQUESTS), OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND INTERMET CORPORATION SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-2
INTERMET CORPORATION
9 3/4% SENIOR NOTE DUE 2009
CUSIP No.
------------------
No. $
-------- --------------------------
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
INTERMET CORPORATION, a Georgia corporation (the "Company," which
term includes any successor corporation under the indenture hereinafter referred
to), for value received promises to pay to _____________________________________
_______________ or registered assigns, the principal sum of ____________________
Dollars on June 15, 2009.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefits under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
[SEAL] Dated:
INTERMET CORPORATION
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By:
-------------------------
Authorized Signatory
A-3
(Back of Note)
9 3/4% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at the rate of 9 3/4% per annum from the date of
original issuance until maturity and shall pay the Additional Interest pursuant
to the registration rights agreement referred below. The Company will pay
interest and Additional Notes semi-annually 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 Note 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 [ ],
200[ ]. The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue payments of the principal,
Purchase Price and Redemption Price of this Note from time to time on demand at
a rate that is 1% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest, if
any, (without regard to any applicable grace periods) hereon 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 Additional Interest, if any, to the Persons who
are registered Holders of Notes at the close of business on the June 1 and
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. Any such installment of interest or Additional Interest, if any, not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Interest Payment Date, and may be paid to the
registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special interest payment date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be
payable as to principal, Redemption Price, Purchase Price, interest and
Additional Interest, if any, 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 Additional Interest 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, Redemption Price and Purchase Price
of, and interest and Additional Interest (if any) on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Trustee or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
A-4
3. Paying Agent and Registrar. Initially, U.S. Bank 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 may act in any such capacity.
4. Indenture and Guarantees. The Company issued $175.0 million in
aggregate principal amount of the Notes under an Indenture dated as of June 13,
2002 (the "Indenture") between 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 Trust Indenture Act of 1939, as amended (15
U.S.C. Code Sections 77aaa-77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement of
such terms. The Notes are general obligations of the Company. Payment on each
Note is guaranteed on a senior basis, jointly and severally, by the Guarantors
pursuant to Article Ten of the Indenture. The Company may issue Additional Notes
under the Indenture.
5. Optional Redemption. The Company may redeem any or all of the
Notes at any time on or after June 15, 2006, upon not less than 30 nor more than
60 days' prior notice in amounts of $1,000 or an integral multiple thereof at
the Redemption Prices (expressed as a percentage of the principal amount) set
forth below, if redeemed during the 12-month period beginning June 15 of the
years indicated below:
Year Redemption Price
---- ----------------
2006............................... 104.875%
2007............................... 102.438%
2008 and thereafter................ 100.000%
in each case together with accrued and unpaid interest and Additional Interest,
if any, to the Redemption Date.
If less than all the Notes are to be redeemed, the Trustee will
select the particular Notes or portions thereof to be redeemed by lot, pro rata
or by any other method the Trustee shall deem fair and reasonable.
6. Special Redemption. In the event the Company completes one or
more Public Equity Offerings on or before June 15, 2005, the Company, at its
option, may use the net cash proceeds from any such Public Equity Offering to
redeem up to 35% of the original principal amount of the Notes (a "Special
Redemption") at a Redemption Price of 109.750% of the principal amount,
together with accrued and unpaid interest and Additional Interest (if any), to
the date of redemption, provided, however, that at least 65% of the original
principal amount of the Notes issued will remain outstanding immediately after
each such redemption; and provided, further, that each such redemption shall
occur within 120 days after the date of the closing of the applicable Public
Equity Offering. If less than all the Notes are to be redeemed, the Trustee will
select the particular Notes or portions thereof to be redeemed by lot, only pro
rata or on as nearly a pro rata basis as is practicable (subject to DTC
procedures).
A-5
7. Mandatory Redemption. Except as set forth in Paragraph 9 below
with respect to repurchases of Notes in certain events, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
8. Notice of Redemption. Subject to the provisions of the
Indenture, a notice of redemption will be mailed at least 30 days but not more
than 60 days (or 45 days in the case of mandatory redemption) before the
Redemption Date to each Holder whose Notes are to be redeemed at its registered
address. 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. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
9. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a
Purchase Price equal to 101% of the principal amount thereof plus accrued and
unpaid interest and Additional Interest, if any, to the date of repurchase, in
accordance with the procedures set forth in the Indenture. Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
(b) On the 366th day after an Asset Sale or such earlier date, if
any, as the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of Section 4.10 of
the Indenture (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount
of Net Cash Proceeds which have not been applied on or before such Net Proceeds
Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of
paragraph (A) of Section 4.10 of the Indenture (each, a "Net Proceeds Offer
Amount") shall be applied by the Company or such Restricted Subsidiary to make
an offer to purchase (the "Net Proceeds Offer") to all Holders and, on a
Purchase Date not less than 30 nor more than 45 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders pro rata, that amount of Notes
to be purchased, plus accrued and unpaid interest thereon, if any, to the date
of purchase.
(c) Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 30 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Notes in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes
will be purchased pro rata based on the aggregate amounts of Notes tendered (and
the Trustee shall select the tendered Notes of tendering Holders pro rata based
on the amount of Notes tendered). A Net Proceeds Offer shall remain open for a
period of 20 business days or such longer period as may be required by law.
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 docu-
A-6
ments 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, it 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 and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture and the Notes 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 obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
13. Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest or Additional Interest, if any,
on the Notes; (ii) default in payment when due of principal, Redemption Price or
Purchase Price of the Notes when the same becomes due and payable at maturity,
upon redemption, repurchase or otherwise (including the failure to make a
payment to purchase Notes tendered pursuant to a Change of Control Offer or a
Net Proceeds Offer); (iii) failure by the Company to comply with any covenant
contained in the Indenture for 45 days after notice to the Company by the
Trustee or the Holders of at least 25% of the aggregate principal amount of the
Notes outstanding; (iv) default under certain other agreements relating to
Indebtedness of the Company which default (a) is caused by a failure to pay any
amount due at the stated maturity thereof or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a default for failure to pay
principal at final maturity or the maturity of which has been so accelerated,
aggregates $20.0 million or more; (v) certain final judgments for the payment of
money that remain undischarged for a period of 60 days, provided that the
aggregate of all such undischarged judgments exceeds $20.0 million; and (vi)
certain events of bankruptcy or insolvency with respect to the Company or any
Significant Subsidiary of the Company. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Upon any such declaration, the entire principal amount of, and
accrued and unpaid interest and Additional Interest, if any, on the Notes shall
become immediately due and payable. 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 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
principal amount of the then outstanding Notes may direct the Trustee in its
A-7
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to payment on any Note) if it determines that
withholding notice is in their interest. The Holders of a majority in principal
amount of the Notes may waive any existing or past Default or Event of Default
under the Indenture, and its consequences, except a default in the payment of
the principal of, or interest on any 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. Trustee Dealings with Company. Subject to certain limitations,
the Trustee under the Indenture, in its individual or any other capacity, may
become owner or pledge of Notes and may otherwise deal with the Company or its
Affiliates as if it were not Trustee.
15. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as
such, shall have any liability for any obligations of the Company under the
Notes or the 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 the issuance of the Notes.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. 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).
18. Discharge Prior to Maturity. If the Company deposits with the
Trustee or Paying Agent cash or U.S. Government Securities sufficient to pay the
principal or Redemption Price of, and interest and Additional Interest, if any,
on, the Notes to maturity or a specified Redemption Date and satisfies certain
conditions specified in the Indenture, the Company will be discharged from the
Indenture, except for certain Sections thereof.
19. Governing Law. The Indenture and Guarantees and this Note
shall be governed by and construed in accordance with the laws of the State of
New York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the law of another jurisdiction would be
required thereby. Each of the Company and each Guarantor hereby irrevocably
submits to the jurisdiction of any New York state court sitting in the Borough
of Manhattan in the City of New York or any Federal court sitting in the Borough
of Manhattan in the City of New York in respect of any suit, action or
proceeding arising out of or relating to the Indenture and the Notes, and
irrevocably accept for itself and in respect of its property, generally and
unconditionally, jurisdiction of the aforesaid courts. Each of the Company and
each Guarantor irrevocably waives, to the fullest extent that it may effectively
do so under applicable law, trial by jury and any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of the Trustee or any
A-8
Holder of the Notes to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Company or any
Guarantor in any other jurisdiction.
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 correctness or accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption or repurchase and reliance may be
placed only on the other identification numbers placed thereon.
21. Registration Rights. Pursuant to a registration rights
agreement, the Company will be obligated upon the occurrence of certain events
to consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Series A Note for the Company's 9-3/4% Senior
Notes due 2009, Series B, which have been registered under the Securities Act,
in like principal amount and having terms identical in all material respects as
the Series A Notes. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
such registration rights agreement.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
INTERMET Corporation
5445 Corporate Drive
Suite 200
Troy, Michigan 48098-2683
Attention: Secretary
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name address and zip code)
and irrevocably appoint
---------------------------------------------------------
agent 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 recognized signature guarantee
medallion program)
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Note
purchased by the Company pursuant to Section 4.10 ("Net Proceeds Offer") or
Section 4.15 ("Change of Control Offer") of the Indenture, check the applicable
boxes
[ ] Net Proceeds Offer: [ ] Change of Control Offer:
in whole [ ] in whole [ ]
in part [ ] in part [ ]
Amount to be Amount to be
purchased: $ purchased: $
----------- -----------
Dated: Signature:
------------------- ----------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
------------------------------------------------
(Participant in recognized signature guarantee
medallion program)
Social Security Number or
Taxpayer Identification Number:
------------------------------------
A-11
EXHIBIT B
FORM OF SERIES B NOTE
(Face of Note)
INTERMET CORPORATION
9 3/4% SENIOR NOTE DUE 2009
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO ANYONE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS 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.](2)
- ----------
(2) To be included only if the Note is issued in global form.
INTERMET CORPORATION
9 3/4% SENIOR NOTE DUE 2009
CUSIP No.
---------------
No. $
-------- ------------------------
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
INTERMET CORPORATION, a Georgia corporation (the "Company," which
term includes any successor corporation under the indenture hereinafter referred
to ), for value received promises to pay to ____________________________________
________________ or registered assigns, the principal sum of ___________________
Dollars on June 15, 2009.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefits under the Indenture referred to on the
reverse hereof or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
[SEAL] Dated:
INTERMET CORPORATION
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------
Authorized Signatory
B-2
(Back of Note)
9 3/4% Senior Notes due 2009
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at the rate of 9 3/4 % per annum from the date of
original issuance until maturity. The Company will pay interest and Additional
Interest semi-annually 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 Note 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 [ ], 200[ ]. The Company
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue payments of the principal, Purchase Price and
Redemption Price of this Note from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any, (without regard to any
applicable grace periods) hereon 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 Additional Interest, if any, to the Persons who
are registered Holders of Notes at the close of business on the June 1 and
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. Any such installment of interest or Additional Interest, if any, not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such Interest Payment Date, and may be paid to the
registered Holders at the close of business on a special interest payment date
to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders not less than 10 days prior to
such special interest payment date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The Notes will be
payable as to principal, Redemption Price, Purchase Price, interest and
Additional Interest, if any, 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 Additional Interest 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, Redemption Price and Purchase Price
of, and interest and Additional Interest (if any) on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Trustee or the Paying Agent. Such payment shall be in such
B-3
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, U.S. Bank 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 may act in any such capacity.
4. Indenture and Guarantees. The Company issued $175.0 million in
aggregate principal amount of the Notes under an Indenture dated as of June 13,
2002 (the "Indenture") between 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 Trust Indenture Act of 1939, as amended (15
U.S.C. Code Sections 77aaa-77bbbb). The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement of
such terms. The Notes are general obligations of the Company. Payment on each
Note is guaranteed on a senior basis, jointly and severally, by the Guarantors
pursuant to Article Ten of the Indenture. The Company may issue Additional Notes
under the Indenture.
5. Optional Redemption. The Company may redeem any or all of the
Notes at any time on or after June 15, 2006, upon not less than 30 nor more than
60 days' prior notice in amounts of $1,000 or an integral multiple thereof at
the Redemption Prices (expressed as a percentage of the principal amount) set
forth below, if redeemed during the 12-month period beginning June 15 of the
years indicated below:
Year Redemption Price
---- ----------------
2006............................... 104.875%
2007............................... 102.438%
2008 and thereafter................ 100.000%
in each case together with accrued and unpaid interest and Additional Interest,
if any, to the Redemption Date.
If less than all the Notes are to be redeemed, the Trustee will
select the particular Notes or portions thereof to be redeemed by lot, pro rata
or by any other method the Trustee shall deem fair and reasonable.
6. Special Redemption. In the event the Company completes one or
more Public Equity Offerings on or before June 15, 2005, the Company, at its
option, may use the net cash proceeds from any such Public Equity Offering to
redeem up to 35% of the original principal amount of the Notes (a "Special
Redemption") at a Redemption Price of 109.750% of the principal amount,
together with accrued and unpaid interest and Additional Interest (if any), to
the date of redemption, provided, however, that at least 65% of the original
principal amount of the Notes issued will remain outstanding immediately after
each such redemption; and provided, further, that each such redemption shall
occur within 120 days after the date of the closing of the applicable Public
Equity Offering. If less than all the Notes are to be redeemed, the Trustee will
select the particular Notes or portions
B-4
thereof to be redeemed by lot, only pro rata or on as nearly a pro rata basis as
is practicable (subject to DTC procedures).
7. Mandatory Redemption. Except as set forth in Paragraph 9 below
with respect to repurchases of Notes in certain events, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
8. Notice of Redemption. Subject to the provisions of the
Indenture, a notice of redemption will be mailed at least 30 days but not more
than 60 days (or 45 days in the case of Mandatory redemption) before the
Redemption Date to each Holder whose Notes are to be redeemed at its registered
address. 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. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
9. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a
Purchase Price equal to 101% of the principal amount thereof plus accrued and
unpaid interest and Additional Interest, if any, to the date of repurchase, in
accordance with the procedures set forth in the Indenture. Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
(b) On the 366th day after an Asset Sale or such earlier date, if
any, as the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) of Section 4.10 of
the Indenture (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount
of Net Cash Proceeds which have not been applied on or before such Net Proceeds
Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of
paragraph (A) of Section 4.10 of the Indenture (each, a "Net Proceeds Offer
Amount") shall be applied by the Company or such Restricted Subsidiary to make
an offer to purchase (the "Net Proceeds Offer") to all Holders on a Purchase
Date not less than 30 nor more than 45 days following the applicable Net
Proceeds Offer Trigger Date, from all Holders pro rata, that amount of Notes to
be purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase.
(c) Each Net Proceeds Offer will be mailed to the record Holders
as shown on the register of Holders within 30 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with the
procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds
Offer, Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
properly tender such Indebtedness in an amount exceeding the Net Proceeds Offer
Amount, the tendered will be purchased pro rata based on the aggregate amounts
of Notes tendered (and the Trustee shall select the tendered Notes of tendering
Holders pro rata based on the amount of Notes tendered). A Net Proceeds Offer
shall remain open for a period of 20 business days or such longer period as may
be required by law.
B-5
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, it 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 and the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of a Note, the Indenture and the Notes 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 obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
13. Defaults and Remedies. Events of Default include: (i) default
for 30 days in the payment when due of interest or Additional Interest, if any,
on the Notes; (ii) default in payment when due of principal, Redemption Price or
Purchase Price of the Notes when the same becomes due and payable at maturity,
upon redemption, repurchase or otherwise (including the failure to make a
payment to purchase Notes tendered pursuant to a Change of Control Offer or a
Net Proceeds Offer); (iii) failure by the Company to comply with any covenant
contained in the Indenture for 45 days after notice to the Company by the
Trustee or the Holders of at least 25% of the aggregate principal amount of the
Notes outstanding; (iv) default under certain other agreements relating to
Indebtedness of the Company which default (a) is caused by a failure to pay any
amount due at the stated maturity thereof or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a default for failure to pay
principal at final maturity or the maturity of which has been so accelerated,
aggregates $20.0 million or more; (v) certain final judgments for the payment of
money that remain undischarged for a period of 60 days, provided that the
aggregate of all such undischarged judgments exceeds $20.0 million; and (vi)
certain events of bankruptcy or insolvency with respect to the Company or any
Significant Subsidiary of the Company. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable
immediately. Upon any such declaration, the entire principal amount of, and
accrued and unpaid interest and Addi-
B-6
tional Interest, if any, on the Notes shall become immediately due and payable.
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 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 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 of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to payment on any
Note) if it determines that withholding notice is in their interest. The Holders
of a majority in principal amount of the Notes may waive any existing or past
Default or Event of Default under the Indenture, and its consequences, except a
default in the payment of the principal of, or interest on any 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. Trustee Dealings with Company. Subject to certain limitations,
the Trustee under the Indenture, in its individual or any other capacity, may
become owner or pledge of Notes and may otherwise deal with the Company or its
Affiliates as if it were not Trustee.
15. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as
such, shall have any liability for any obligations of the Company under the
Notes or the 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 the issuance of the Notes.
16. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. 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).
18. Discharge Prior to Maturity. If the Company deposits with the
Trustee or Paying Agent cash or U.S. Government Securities sufficient to pay the
principal or Redemption Price of, and interest and Additional Interest, if any,
on, the Notes to maturity or a specified Redemption Date and satisfies certain
conditions specified in the Indenture, the Company will be discharged from the
Indenture, except for certain Sections thereof.
19. Governing Law. The Indenture and Guarantees and this Note
shall be governed by and construed in accordance with the laws of the State of
New York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the law of another jurisdiction would be
required thereby. Each of the Company and each Guarantor hereby irrevocably
submits to the jurisdiction of any New York state court sitting in the Borough
of Manhattan in the City of New York or any Federal court sitting in the Borough
of Manhattan in the City of New York in respect of any suit, action or
proceeding arising out of or relating to the Indenture and the Notes, and
irrevocably accept for itself and in respect of its property, generally and
unconditionally, jurisdic-
B-7
tion of the aforesaid courts. Each of the Company and each Guarantor irrevocably
waives, to the fullest extent that it may effectively do so under applicable
law, trial by jury and any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Nothing herein shall affect the
right of the Trustee or any Holder of the Notes to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Company or any Guarantor in any other jurisdiction.
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 correctness or accuracy of such numbers either as printed on the Notes
or as contained in any notice of redemption or repurchase and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
INTERMET Corporation
5445 Corporate Drive
Suite 200
Troy, Michigan 49098-2083
Attention: Secretary
B-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name address and zip code)
and irrevocably appoint
---------------------------------------------------------
agent 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 recognized signature guarantee
medallion program)
B-9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to elect to have all or any portion of this Note
purchased by the Company pursuant to Section 4.10 ("Net Proceeds Offer") or
Section 4.15 ("Change of Control Offer") of the Indenture, check the applicable
boxes
[ ] Net Proceeds Offer: [ ] Change of Control Offer:
in whole [ ] in whole [ ]
in part [ ] in part [ ]
Amount to be Amount to be
purchased: $ purchased: $
----------- -----------
Dated: Signature:
------------------ -----------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
------------------------------------------------
(Participant in recognized signature guarantee
medallion program)
Social Security Number or
Taxpayer Identification Number:
-------------------------------------
B-10
EXHIBIT C
GUARANTEE
For value received, [each of] the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note the cash payments in United States dollars of principal of, premium, if
any, and interest on this Note (and including Additional Interest payable
thereon) in the amounts and at the times when due and interest on the overdue
principal, premium, if any, and interest, if any, of this Note, if lawful, and
the payment or performance of all other Obligations of the Company under the
Indenture (as defined below) or the Note, to the Holder of this Note and the
Trustee, all in accordance with and subject to the terms and limitations of this
Note, Article Ten of the Indenture and this Guarantee. This Guarantee will
become effective in accordance with Article Ten of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of this Guarantee
shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Indenture dated as of June 13, 2002, among INTERMET Corporation,
a Georgia corporation, as issuer (the "Company"), each of the Guarantors named
therein and U.S. Bank National Association, as trustee (the "Trustee") (as
amended or supplemented, the "Indenture").
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[GUARANTOR(S)]
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
EXHIBIT D(1)
FORM OF REGULATION S CERTIFICATE
-------------------,-------
U.S. Bank National Association
U.S. Bank Corporate Trust Center
180 East 5th Street
Suite 200
St. Paul, MN 55101
Attention: Corporate Trust Administration
Re: INTERMET Corporation (the "Company")
9 3/4% Senior Notes due 2009 (the "Notes")
Dear Sirs:
This letter relates to U.S. $ ______________ principal amount at
maturity of Notes represented by a certificate (the "Legended Certificate")
which bears a legend outlining restrictions upon transfer of such Legended
Certificate. Pursuant to Section 2.1 of the Indenture (the "Indenture") dated as
of June 13, 2002 relating to the Notes, we hereby certify that we are (or we
will hold such securities on behalf of) a person outside the United States to
whom the Notes could be transferred in accordance with Rule 904 of Regulation S
promulgated under the U.S. Securities Act of 1933, as amended.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
----------------------------------
Authorized Signature
EXHIBIT D(2)
CERTIFICATE TO BE DELIVERED
UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
-----------------, ------
U.S. Bank National Association
U.S. Bank Corporate Trust Center
180 East 5th Street
Suite 200
St. Paul, MN 55101
Attention: Corporate Trust Administration
Re: INTERMET Corporation (the "Company")
9 3/4% Senior Notes due 2009 (the "Notes")
Dear Sirs:
This Certificate relates to $ _____________ principal amount of
Notes held in
[ ] book-entry* or [ ] certificated form*
by ___________________________________(the "Transferor").
The Transferor:*
[ ] has requested the Trustee by written order to deliver in
exchange for its beneficial interest in the Global Note held by the Depositary a
Note or Notes in certificated, registered form of authorized denominations in an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with such request and in respect of each such Note,
the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above captioned Notes and as provided in Section 2.6
of such Indenture, the transfer of this Note does not require registration under
the Securities Act (as defined below) because:*
- ----------
* Check applicable box
[ ] Such Note is being acquired for the Transferor's own account,
without transfer.
[ ] Such Note is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")) in reliance on Rule 144A.
[ ] Such Note is being transferred to an "Accredited Investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) in
accordance with Regulation D under the Securities Act.
[ ] Such Note is being transferred pursuant to an exemption from
registration in accordance with Regulation S under the Securities Act.
[ ] Such Note is being transferred in accordance with Rule 144 under
the Securities Act, or pursuant to an effective registration statement under the
Securities Act.
[ ] Such Note is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act,
other than Rule 144A, 144 or Rule 904 under the Securities Act. An Opinion of
Counsel to the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate.
Very truly yours,
-----------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-----------------------------------------
Name:
Title
Date:
------------------
D(2)-2
EXHIBIT E
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
----------------------,-------
U.S. Bank National Association
U.S. Bank Corporate Trust Center
180 East 5th Street
Suite 200
St. Paul, MN 55101
Attention: Corporate Trust Administration
Re: INTERMET Corporation (the "Company")
9 3/4% Senior Notes due 2009 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of 9 3/4% Senior Notes due
2009 (the "Notes") of the Company, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture dated
as of June 13, 2002 relating to the Notes (the "Indenture") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with such restrictions and conditions and the Securities
Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under
the Securities Act or any other applicable securities law, and that the Notes
may not be offered, sold or otherwise transferred except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should offer, sell,
transfer, pledge, hypothecate or otherwise dispose of any Notes within two years
after the original issuance of the Notes, we will do so only (A) to the Company
or any Subsidiary thereof, (B) inside the United States to a "qualified
institutional buyer" in compliance with Rule 144A under the Securities Act, (C)
inside the United States to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes to you a signed letter
substantially in the form of this letter, (D) outside the United States to a
foreign person in compliance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available), (F) in accordance with another exemption from
the registration requirements of the Securities Act, or (G) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein and in
the Indenture.
3. We understand that, on any proposed transfer of any Notes
prior to the later of the original issue date of the Notes and the last date the
Notes were held by an affiliate of the Company pursuant to paragraphs 2(C), 2(D)
and 2(E) above, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed transfer complies with the
foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are acquiring the Notes for investment purposes
and not with a view to, or offer of sale in connection with, any distribution in
violation of the Securities Act, and we are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Notes purchased by us for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
(Name of Transferee)
By:
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Authorized Signature
E-2
EXHIBIT F
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
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U.S. Bank National Association
U.S. Bank Corporate Trust Center
180 East 5th Street
Suite 200
St. Paul, MN 55101
Re: INTERMET Corporation (the "Company")
9-3/4% Senior Notes due 2009 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $_________ aggregate
principal amount at maturity of the Notes, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this letter have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
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Authorized Signature