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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1996
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
COMMONWEALTH ALUMINUM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 3353 08-16561
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
1200 MEIDINGER TOWER
LOUISVILLE, KENTUCKY 40202
(502) 589-8100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------------
MARK V. KAMINSKI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COMMONWEALTH ALUMINUM CORPORATION
1200 MEIDINGER TOWER
462 S. 4TH AVENUE
LOUISVILLE, KENTUCKY 40202
(502) 589-8100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH COPIES TO:
John Merow
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
------------------------
Approximate date of commencement of proposed sale to the public:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the Securities registered on this Form are to be offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE
TITLE OF EACH CLASS OF SECURITIES TO BE PRICE PER OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED UNIT PRICE REGISTRATION FEE
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10 3/4% Senior Subordinated Notes Due 2006....... $125,000,000 100% $125,000,000 $37,878.79
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------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
OFFER TO EXCHANGE
ALL OUTSTANDING
10 3/4% SENIOR SUBORDINATED NOTES
DUE OCTOBER 1, 2006
($125,000,000 PRINCIPAL AMOUNT OUTSTANDING)
FOR
10 3/4% SENIOR SUBORDINATED NOTES
DUE OCTOBER 1, 2006
OF
COMMONWEALTH ALUMINUM CORPORATION
---------------
THE EXCHANGE OFFER
WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON , 1996, UNLESS EXTENDED
---------------------
Commonwealth Aluminum Corporation, a Delaware corporation (the "Company"),
hereby offers, upon the terms and subject to the conditions set forth in this
Prospectus and the accompanying letter of transmittal (the "Letter of
Transmittal," and together with this Prospectus, the "Exchange Offer"), to
exchange $1,000 principal amount of its 10 3/4% Senior Subordinated Notes Due
October 1, 2006 (the "New Notes"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement (as defined herein) of which this Prospectus constitutes
a part, for each $1,000 principal amount of the outstanding 10 3/4% Senior
Subordinated Notes Due October 1, 2006 (the "Old Notes") of the Company, of
which $125,000,000 principal amount is outstanding. The New Notes and the Old
Notes are collectively referred to herein as the "Notes."
The Company will accept for exchange any and all Old Notes that are validly
tendered on or prior to 5:00 p.m., New York City time, on the date the Exchange
Offer expires, which will be , 1996, unless the Exchange Offer is
extended (the "Expiration Date"). Tenders of Old Notes may be withdrawn at any
time prior to 5:00 p.m., New York City time, on the business day prior to the
Expiration Date, unless previously accepted for payment. The Exchange Offer is
not conditioned upon any minimum principal amount of Old Notes being tendered
for exchange. However, the Exchange Offer is subject to certain conditions which
may be waived by the Company and to the terms and provisions of the Registration
Rights Agreement (as defined herein). See "The Exchange Offer." Old Notes may be
tendered only in denominations of $1,000 and integral multiples thereof.
The New Notes will be obligations of the Company entitled to the benefits of
the Indenture (as defined herein). The form and terms of the New Notes are the
same in all material respects as the form and terms of the Old Notes except that
the New Notes have been registered under the Securities Act and will not contain
terms restricting the transfer thereof. Following the completion of the Exchange
Offer, none of the Notes will be entitled to the benefits of the Registration
Rights Agreement relating to contingent increases in the interest rate provided
for pursuant thereto. See "The Exchange Offer."
INVESTMENT IN THE NOTES INVOLVES SIGNIFICANT RISKS DISCUSSED
UNDER "RISK FACTORS" ON PAGE 13 WHICH SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS.
The New Notes will bear interest from September 20, 1996. Holders of Old
Notes whose Old Notes are accepted for exchange will be deemed to have waived
the right to receive any payment in respect of interest on the Old Notes accrued
from September 20, 1996 to the date of the issuance of the New Notes. Interest
on the New Notes is payable semi-annually on April 1 and October 1 of each year,
commencing April 1, 1997, accruing from September 20, 1996 at a rate of 10 3/4%
per annum.
(CONTINUED ON NEXT PAGE)
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1996.
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(CONTINUED FROM COVER)
The Notes are redeemable at the option of the Company, in whole or in part,
at any time on or after October 1, 2001, at the redemption prices set forth
herein plus accrued interest to the date of redemption. In addition, at any time
prior to October 1, 1999, the Company has the option to redeem up to $43.75
million aggregate principal amount of the Notes out of the proceeds of one or
more Public Equity Offerings (as defined herein) at a redemption price of
110.750% of the principal amount thereof, plus accrued interest to the date of
redemption; PROVIDED, that at least $65.0 million aggregate principal amount of
the Notes must remain outstanding after each such redemption.
Old Notes initially sold to Qualified Institutional Buyers (as defined in
Rule 144A under the Securities Act) were represented by a single, global Note in
definitive fully registered form without coupons, registered in the name of a
nominee of The Depository Trust Company ("DTC"), as depositary. The New Notes
exchanged for Old Notes represented by the global Note will be represented by a
single, global New Note in definitive fully registered form without coupons,
registered in the name of the nominee of DTC, as depositary, unless the
beneficial holders thereof request otherwise. The global New Note will be
exchangeable, upon ten days prior written notice, for New Notes in definitive
fully registered form without coupons, in denominations of $1,000 and integral
multiples thereof. See "Description of New Notes--Form, Denomination and
Book-Entry Procedures."
The Old Notes are, and the New Notes will be, subordinated in right of
payment to all existing and future Senior Indebtedness (as defined herein) of
the Company. The Old Notes are, and the New Notes will be, guaranteed by certain
of the Company's subsidiaries and the guarantees will be subordinated in right
of payment to the Senior Indebtedness of such subsidiaries. At June 30, 1996, on
a pro forma basis after giving effect to the CasTech Acquisition (as defined
herein), the Company would have had approximately $377.3 million of Indebtedness
(as defined herein) outstanding, of which $125.0 million would have been
represented by the Notes and approximately $252.3 million would have been Senior
Indebtedness of the Company's subsidiaries guaranteed by the Company.
Based on no-action letters issued by the staff of the Securities and
Exchange Commission (the "Commission") to third parties, the Company believes
the New Notes issued pursuant to the Exchange Offer may be offered for resale,
resold and otherwise transferred by holders thereof (other than any such holder
that is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus delivery
provisions of the Securities Act provided that such New Notes are acquired in
the ordinary course of such holders' business and such holders have no
arrangements with any person to participate in the distribution of such New
Notes. Each broker-dealer that receives New Notes for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. The Letter of Transmittal states
that by so acknowledging and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of New Notes
received in exchange for Old Notes where such Old Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 90 days after the
Expiration Date, it will make this Prospectus and any amendment or supplement to
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
The Company will not receive any proceeds from this offering, and no
underwriter is being utilized in connection with the Exchange Offer.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
2
<PAGE>
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
The New Notes are a new issue of securities for which there is currently no
trading market. If the New Notes are traded after their initial issuance, they
may trade at a discount from their principal amount, depending upon prevailing
interest rates, the market for similar securities and other factors, including
general economic conditions and the financial condition and performance of, and
prospects for, the Company. Morgan Stanley & Co. Incorporated and NatWest
Capital Markets Limited have advised the Company that they currently intend to
make a market in the Old Notes and the New Notes. However, they are not
obligated to do so, and any market making activity with respect to the Old Notes
and the New Notes may be discontinued at any time without notice. Accordingly,
there can be no assurance as to the development or liquidity of any market for
the Old Notes and the New Notes. The Company does not intend to apply for
listing of the New Notes on any securities exchange or for quotation through the
National Association of Securities Dealers Automated Quotation System.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information filed by the
Company may be inspected and copied at the public reference facilities of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices: Seven World Trade Center,
13th Floor, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and copies of such material can be
obtained from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. In addition,
such material can also be obtained from the Commission's Web site at
http://www.sec.gov.
This Prospectus constitutes a part of a registration statement (the
"Registration Statement") filed by the Company with the Commission under the
Securities Act. As permitted by the rules and regulations of the Commission,
this Prospectus does not contain all of the information contained in the
Registration Statement and the exhibits and schedules thereto and reference is
hereby made to the Registration Statement and the exhibits and schedules thereto
for further information with respect to the Company and the securities offered
hereby. Statements contained herein concerning the provisions of any documents
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission are not necessarily complete, and in each instance reference is made
to the copy of such document so filed. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus the
following documents or information filed with the Commission:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, as amended by the Company's Annual Report on Form 10-K/A
for the fiscal year ended December 31, 1995 (collectively, the "Form 10-K");
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31 and June 30, 1996 and the Company's Quarterly Report on Form
10-Q/A for the fiscal quarter ended June 30, 1996 (the "June 30, 1996 Form
10-Q/A");
(c) the Company's Current Report on Form 8-K filed August 20, 1996 and
the Company's Current Report on Form 8-K filed September 26, 1996; and
3
<PAGE>
(d) all documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act on or after the date of this Prospectus and
prior to the termination of the offering made hereby.
Any statement contained herein or in any documents incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for the purpose of this Prospectus to the extent that a subsequent statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE WITHOUT CHARGE UPON
WRITTEN OR ORAL REQUEST FROM DONALD L. MARSH, JR., EXECUTIVE VICE PRESIDENT
FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY OF THE COMPANY AT THE COMPANY'S
PRINCIPAL EXECUTIVE OFFICES LOCATED AT MEIDINGER TOWER, 462 S. 4TH AVENUE, SUITE
1200, LOUISVILLE, KENTUCKY 40202, TELEPHONE NUMBER (502) 589-8100. IN ORDER TO
ENSURE TIMELY DELIVERY OF SUCH DOCUMENTS, ANY REQUEST SHOULD BE MADE BY
, 1996 [FIVE BUSINESS DAYS PRIOR TO THE EXPIRATION DATE].
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND THE ACCOMPANYING LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE EXCHANGE AGENT. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR THE ACCOMPANYING LETTER OF TRANSMITTAL, OR BOTH TOGETHER, NOR ANY
SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
NEITHER THIS PROSPECTUS NOR THE ACCOMPANYING LETTER OF TRANSMITTAL, OR BOTH
TOGETHER, CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
OF THE SECURITIES OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
TABLE OF CONTENTS
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PAGE
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Available Information...................................................................................... 3
Incorporation of Certain Documents by Reference............................................................ 3
Summary.................................................................................................... 5
Risk Factors............................................................................................... 13
Use of Proceeds............................................................................................ 18
The Exchange Offer......................................................................................... 19
Description of New Notes................................................................................... 26
Certain Federal Income Tax Consequences.................................................................... 58
Plan of Distribution....................................................................................... 60
Validity of New Notes...................................................................................... 61
Experts.................................................................................................... 61
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4
<PAGE>
SUMMARY
THE FOLLOWING INFORMATION IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION, FINANCIAL STATEMENTS AND PRO FORMA FINANCIAL INFORMATION APPEARING
ELSEWHERE IN THIS PROSPECTUS OR INCORPORATED BY REFERENCE HEREIN. INVESTMENT IN
THE SECURITIES OFFERED HEREBY INVOLVES SIGNIFICANT RISKS. SEE "RISK FACTORS".
THE COMPANY
The Company owns and operates at Lewisport, Kentucky, one of the largest
multi-purpose aluminum rolling mills in North America and is a leading
manufacturer of aluminum sheet for the transportation, construction and consumer
durables end-use markets. In 1995, the Company produced 599 million pounds of
aluminum sheet products from purchased aluminum scrap and primary aluminum
metal, up from 352 million pounds in 1991. A further increase in annual
production capacity to 720 million pounds in 1998 is planned. The Lewisport mill
uses the conventional, vertical direct chill, rolling ingot casting process.
In 1995, the Company's sales and income before income taxes, plus interest
expense, depreciation and amortization ("EBITDA") were $671.5 million and $65.1
million, respectively, and in the first six months of 1996, the Company's sales
and EBITDA were $327.2 million and $15.2 million, respectively. The Company
believes it is the largest supplier of common alloy aluminum sheet to aluminum
distributors in North America and one of the largest direct suppliers of
aluminum sheet products to American manufacturers of transportation equipment.
In 1995, the Company estimates its share of these two markets was approximately
21% and sales to these two markets amounted to approximately 48% and 22%,
respectively, of its 1995 aluminum sheet revenues.
On September 20, 1996, the Company consummated the acquisition (the "CasTech
Acquisition") of CasTech Aluminum Group Inc. ("CasTech") for cash consideration
(excluding fees and expenses) of approximately $275 million. CasTech is the
nation's leading manufacturer of continuous cast aluminum sheet, using low-cost,
scrap-based mini-mill production technology. CasTech also is a leading
manufacturer of electrical flexible conduit and prewired armored cable, made
principally from aluminum sheet manufactured by CasTech. Over the past several
years, CasTech has increased the aluminum sheet annual production capacity of
its mills at Uhrichsville, Ohio, and Carson, California, by over 40% to 360
million pounds. Total production capacity is expected to increase further to 400
million pounds by 1998. CasTech fabricates its flexible conduit and armored
cable products at its Long Beach, California fabrication facility. This facility
purchases its aluminum sheet from its Carson rolling mill making CasTech the
only backward integrated manufacturer of electrical flexible conduit and cable.
In fiscal 1996, CasTech's sales and EBITDA were $400.4 million and $41.7
million, respectively, and in the first six calendar months of 1996, CasTech's
sales and EBITDA were $201.5 million and $18.4 million, respectively. CasTech's
aluminum sheet products are used in numerous industries, including the building
products, transportation, electrical and consumer durable end-use markets. The
electrical flexible conduit and prewired armored cable products are sold
primarily for use in commercial and residential construction, renovation and
remodeling.
On a pro forma basis after giving effect to the CasTech Acquisition, the
Company's sales and EBITDA were $1.1 billion and $106.8 million, respectively,
in 1995 and $528.7 million and $33.6 million, respectively, in the first six
months of 1996.
The purchase of the CasTech shares in the tender offer and subsequent
merger, the related transaction expenses and repayment of all outstanding
indebtedness of the Company and CasTech were funded with borrowings under a new
senior secured bank credit facility (the "New Bank Credit Facility") and the
proceeds of the sale of the Old Notes. See "Use of Proceeds." The New Bank
Credit Facility consists of $100 million of term loan and $225 million of
revolving credit facilities. See "Risk Factors--Ranking of Notes."
5
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The Company's principal executive offices are located at Meidinger Tower,
462 S. 4th Avenue, Suite 1200, Louisville, Kentucky 40202, and its telephone
number is (502) 589-8100.
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
The Exchange Offer relates to the exchange of up to $125,000,000 aggregate
principal amount of Old Notes for up to an equal aggregate principal amount of
New Notes. The New Notes will be obligations of the Company entitled to the
benefits of the Indenture. The form and terms of the New Notes are the same as
the form and terms of the Old Notes except that the New Notes have been
registered under the Securities Act and will not contain terms restricting the
transfer thereof (and hence are not entitled to the benefits of the Registration
Rights Agreement relating to the contingent increases in the interest rate
provided for pursuant thereto). The Old Notes and the New Notes are herein
collectively referred to as the "Notes." See "Description of New Notes."
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THE EXCHANGE OFFER........... $1,000 principal amount of New Notes will be issued in
exchange for each $1,000 principal amount of Old Notes
validly tendered pursuant to the Exchange Offer. As of the
date hereof, $125,000,000 in aggregate principal amount of
Old Notes are outstanding. The Company will issue the New
Notes to tendering holders of Old Notes promptly after the
Expiration Date.
RESALE....................... The Company believes that the New Notes issued pursuant to
the Exchange Offer generally will be freely transferable by
the holders thereof without registration or any prospectus
delivery requirement under the Securities Act, except that a
"dealer" or any "affiliate" of the Company, as such terms
are defined under the Securities Act, that exchanges Old
Notes held for its own account (a "Restricted Holder") may
be required to deliver copies of this Prospectus in
connection with any resale of the New Notes issued in
exchange for such Old Notes. See "The Exchange
Offer--General" and "Plan of Distribution."
EXPIRATION DATE.............. 5:00 p.m., New York City time, on , 1996, unless
the Exchange Offer is extended, in which case the term
"Expiration Date" means the latest date and time to which
the Exchange Offer is extended. See "The Exchange
Offer--Expiration Date; Extensions; Amendments."
ACCRUED INTEREST ON THE NEW
NOTES AND THE OLD NOTES.... The New Notes will bear interest from September 20, 1996.
Holders of Old Notes whose Old Notes are accepted for
exchange will be deemed to have waived the right to receive
any payment in respect of interest on such Old Notes accrued
from September 20, 1996 to the date of the issuance of the
New Notes. Consequently, holders who exchange their Old
Notes for New Notes will receive the same interest payment
on April 1, 1997 (the first interest payment date with
respect to the Old Notes and the New Notes) that they would
have received had they not accepted the Exchange Offer. See
"The Exchange Offer--Interest on the New Notes."
TERMINATION OF THE EXCHANGE
OFFER...................... The Company may terminate the Exchange Offer if it
determines that
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6
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its ability to proceed with the Exchange Offer could be
materially impaired due to any legal or governmental action,
any new law, statute, rule or regulation or any
interpretation of the staff of the Commission of any
existing law, statute, rule or regulation or if the Company
deems it advisable to terminate the Exchange Offer. Holders
of Old Notes will have certain rights against the Company
under the Registration Rights Agreement should the Company
fail to consummate the Exchange Offer. See "The Exchange
Offer-- Termination."
No federal or state regulatory requirements must be complied
with or approvals obtained in connection with the Exchange
Offer, other than applicable requirements under federal and
state securities laws.
PROCEDURES FOR TENDERING OLD
NOTES...................... Each holder of Old Notes wishing to accept the Exchange
Offer must complete, sign and date the accompanying Letter
of Transmittal, or a facsimile thereof, in accordance with
the instructions contained herein and therein, and mail or
otherwise deliver such Letter of Transmittal, or such
facsimile, together with the Old Notes to be exchanged and
any other required documentation to Harris Trust and Savings
Bank, as Exchange Agent, at the address set forth herein and
therein or effect a tender of Old Notes pursuant to the
procedures for book-entry transfer as provided for herein.
See "The Exchange Offer-- Procedures for Tendering."
SPECIAL PROCEDURES FOR
BENEFICIAL HOLDERS......... Any beneficial holder whose Old Notes are registered in the
name of his broker, dealer, commercial bank, trust company
or other nominee and who wishes to tender in the Exchange
Offer should contact such registered holder promptly and
instruct such registered holder to tender on his behalf. If
such beneficial holder wishes to tender on his own behalf,
such beneficial holder must, prior to completing and
executing the Letter of Transmittal and delivering his Old
Notes, either make appropriate arrangements to register
ownership of the Old Notes in such holder's name or obtain a
properly completed bond power from the registered holder.
The transfer of record ownership may take considerable time.
See "The Exchange Offer--Procedures for Tendering."
GUARANTEED DELIVERY
PROCEDURES................. Holders of Old Notes who wish to tender their Old Notes and
whose Old Notes are not immediately available or who cannot
deliver their Old Notes (or who cannot complete the
procedure for book-entry transfer on a timely basis) and a
properly completed Letter of Transmittal or any other
documents required by the Letter of Transmittal to the
Exchange Agent prior to the Expiration Date may tender their
Old Notes according to the guaranteed delivery procedures
set forth in "The Exchange Offer--Guaranteed Delivery
Procedures."
WITHDRAWAL RIGHTS............ Tenders of Old Notes may be withdrawn at any time prior to
5:00 p.m., New York City time, on the business day prior to
the Expiration Date,
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7
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unless previously accepted for exchange. See "The Exchange
Offer-- Withdrawal of Tenders."
ACCEPTANCE OF OLD NOTES AND
DELIVERY OF NEW NOTES...... Subject to certain conditions (as summarized above in
"Termination of the Exchange Offer" and described more fully
in "The Exchange Offer--Termination"), the Company will
accept for exchange any and all Old Notes which are properly
tendered in the Exchange Offer prior to 5:00 p.m., New York
City time, on the Expiration Date. The New Notes issued
pursuant to the Exchange Offer will be delivered promptly
following the Expiration Date. See "The Exchange Offer--
General."
CERTAIN FEDERAL INCOME TAX
CONSEQUENCES............... The exchange pursuant to the Exchange Offer will generally
not be a taxable event for federal income tax purposes. See
"Certain Federal Income Tax Consequences."
EXCHANGE AGENT............... Harris Trust and Savings Bank, the Trustee under the
Indenture, is serving as exchange agent (the "Exchange
Agent") in connection with the Exchange Offer. See "The
Exchange Offer--Exchange Agent."
USE OF PROCEEDS.............. There will be no cash proceeds payable to the Company from
the issuance of the New Notes pursuant to the Exchange
Offer. Net proceeds received by the Company from the sale of
the Old Notes were applied to effect the CasTech
Acquisition.
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SUMMARY DESCRIPTION OF NEW NOTES
<TABLE>
<S> <C>
SECURITIES OFFERED........... $125,000,000 aggregate principal amount of 10 3/4% Senior
Subordinated Notes Due 2006 (the "New Notes").
MATURITY DATE................ October 1, 2006.
INTEREST..................... Payable semi-annually in cash on April 1 and October 1,
commencing on April 1, 1997.
OPTIONAL REDEMPTION BY
COMPANY.................... The Notes are redeemable at the option of the Company, in
whole or in part, at any time on or after October 1, 2001,
initially at 105.375% of their principal amount, plus
accrued interest, declining ratably to 100% of their
principal amount, plus accrued interest, on or after October
1, 2003.
In addition, at any time prior to October 1, 1999, the
Company has the option to redeem up to $43.75 million
aggregate principal amount of the Notes out of the proceeds
of one or more Public Equity Offerings at a redemption price
of 110.750% of the principal amount thereof, plus accrued
interest to the date of redemption; PROVIDED, that at least
$65.0 million aggregate principal amount of Notes must
remain outstanding after each such redemption. See
"Description of New Notes--Optional Redemption."
CHANGE OF CONTROL............ Upon a Change of Control (as defined herein), the Company
will be required to make an offer to purchase the Notes at a
purchase price
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equal to 101% of their principal amount, plus accrued
interest. See "Description of New Notes--Repurchase of Notes
upon a Change of Control."
GUARANTEE.................... The Old Notes are, and the New Notes will be, jointly and
severally, fully and unconditionally guaranteed on a senior
subordinated basis by certain of the Company's subsidiaries
(each, a "Guarantor"). Each such Guarantee (a "Subsidiary
Guarantee") will be an unsecured, senior subordinated
obligation of the Guarantor and will rank junior in right of
payment to all existing and future Senior Indebtedness (as
defined herein) of such Guarantor, including such
Guarantor's obligations under the New Bank Credit Facility.
At June 30, 1996, on a pro forma basis after giving effect
to the CasTech Acquisition, the Company would have had
approximately $377.3 million of Indebtedness outstanding, of
which $125.0 million would have been represented by the
Notes and approximately $252.3 million would have been
Senior Indebtedness of the Guarantors guaranteed by the
Company. See "Risk Factors--Increased Financial Leverage"
and "Description of New Notes--Subsidiary Guarantees."
RANKING...................... The Old Notes are, and the New Notes will be, unsecured,
general obligations of the Company subordinated in right of
payment to all existing and future Senior Indebtedness of
the Company. The New Notes will rank PARI PASSU in right of
payment with any future Senior Subordinated Indebtedness (as
defined herein) of the Company and will be senior in right
of payment to all existing and future Subordinated
Indebtedness of the Company. At June 30, 1996, on a pro
forma basis after giving effect to the CasTech Acquisition,
the Company (excluding its subsidiaries) would have had no
Senior Indebtedness outstanding other than its guarantee of
approximately $252.3 million of the Senior Indebtedness of
its subsidiaries. See "Risk Factors--Ranking of the Notes"
and "Description of New Notes--Ranking."
CERTAIN COVENANTS............ The indenture pursuant to which the Old Notes were issued
and the New Notes will be issued (the "Indenture") contains
covenants for the benefit of the holders of the Notes (the
"Holders"), including covenants limiting the incurrence of
additional indebtedness, the payment of dividends, the
redemption of capital stock, the making of certain
investments, the issuance of capital stock of subsidiaries,
the creation of dividend and other restrictions affecting
subsidiaries, transactions with affiliates, asset sales and
certain mergers and consolidations. However, these
limitations will be subject to a number of important
qualifications and exceptions. See "Description of New
Notes--Certain Covenants." In addition, if the Notes are
assigned an Investment Grade Rating (as defined herein), the
covenants regarding incurrence of additional indebtedness,
the payment of dividends, the redemption of capital stock,
the making of certain investments, the issuance of capital
stock of subsidiaries, the creation of dividend and other
restrictions affecting subsidiaries, asset sales and certain
provisions regarding certain mergers and consolidations will
no longer apply and the Company will be subject to a
covenant regarding
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
limitations on liens. See "Description of New Notes--Certain
Covenants--Certain Positive Credit Events."
REGISTRATION RIGHTS.......... The Company is obligated to consummate the Exchange Offer or
to cause resales of the Old Notes to be registered under the
Securities Act and, if one of such events does not occur
prior to April 1, 1997, then the annual interest rate borne
by the Old Notes will be increased to 11 1/4%. If such
Exchange Offer is not consummated or a shelf registration
statement is not declared effective by October 1, 1997, then
the annual interest rate borne by the Old Notes shall be
increased by an additional 0.5%. Upon consummation of such
Exchange Offer or the effectiveness of such shelf
registration statement, the interest rate borne by the Old
Notes will revert to 10 3/4%. Holders who do not participate
in the Exchange Offer may thereafter hold a less liquid
security. See "Description of New Notes--Registration
Rights."
</TABLE>
RISK FACTORS
Prospective investors should consider carefully certain matters relating to
an investment in the New Notes. See "Risk Factors."
10
<PAGE>
SELECTED FINANCIAL DATA
The following table sets forth selected consolidated statement of
operations, operating and balance sheet data for the Company for the periods
indicated. The historical financial information for, and as of the end of, each
of the years ended December 31, 1991, 1992, 1993, 1994 and 1995 are derived from
the audited consolidated financial statements of the Company for such years. The
selected consolidated statement of operations data for the six months ended June
30, 1995 and 1996 and the selected consolidated balance sheet data as of June
30, 1996 are derived from the unaudited consolidated financial statements of the
Company, which include all adjustments (which were of a normal and recurring
nature), which management considers necessary for a fair presentation of the
data for such periods and at such dates. The results of the six months ended
June 30, 1996 are not necessarily indicative of results to be expected for the
full year. This information should be read in conjunction with, and is qualified
by reference to, the consolidated financial statements of the Company and the
notes thereto and "Management's Discussion and Analysis of Financial Condition
and Results of Operations" included in the Form 10-K and June 30, 1996 Form
10-Q/A.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
----------------------------------------------------- --------------------
1991 1992 1993 1994 1995 1995 1996
--------- --------- --------- --------- --------- --------- ---------
(IN THOUSANDS, EXCEPT RATIOS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
HISTORICAL STATEMENT OF OPERATIONS DATA:
Net sales.......................................... $ 326,860 $ 400,314 $ 413,036 $ 496,529 $ 671,501 $ 366,136 $ 327,216
Cost of goods sold................................. 344,237 379,654 407,561 455,123 606,751 327,822 308,535
--------- --------- --------- --------- --------- --------- ---------
Gross profit (loss)............................ (17,377) 20,660 5,475 41,406 64,750 38,314 18,681
Selling, general and administrative expenses....... 22,388 15,835 21,462 21,144 22,510 11,509 12,200
--------- --------- --------- --------- --------- --------- ---------
Operating income (loss)............................ (39,765) 4,825 (15,987) 20,262 42,240 26,805 6,481
Halco income(1).................................... 3,785 2,337 4,504 2,635 1,636 1,263 --
Other income (expense), net........................ (233) 937 111 (44) 2,670 2,942 (247)
Interest expense, net.............................. (6,342) (122) (164) (62) (3,473) (1,849) (1,122)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before income taxes and cumulative
effect of accounting change...................... (42,555) 7,977 (11,536) 22,791 43,073 29,161 5,112
Provision for income taxes......................... 39 207 42 700 9,286 7,582 617
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before cumulative effect of
accounting change................................ (42,594) 7,770 (11,578) 22,091 33,787 21,579 4,495
Cumulative effect of change in accounting
principle(2)..................................... -- -- (66,415) -- -- -- --
--------- --------- --------- --------- --------- --------- ---------
Net income (loss).................................. $ (42,594) $ 7,770 $ (77,993) $ 22,091 $ 33,787 $ 21,579 $ 4,495
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Earnings (loss) per common share(3)................ N/A N/A N/A N/A $ 3.32 $ 2.12 $ 0.44
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Dividends per common share(3)...................... N/A N/A N/A N/A $ 0.15 $ 0.10 $ 0.10
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
OPERATING DATA:
EBITDA(4).......................................... $ (20,574) $ 24,160 $ 5,166 $ 40,250 $ 65,146 $ 40,121 $ 15,197
Ratio of earnings to fixed charges(5).............. -- 18.34x -- 62.60x 11.53x 15.05x 4.05x
Depreciation and amortization...................... $ 15,639 $ 16,061 $ 16,538 $ 17,397 $ 18,600 $ 9,111 $ 8,963
Capital expenditures............................... $ 29,246 $ 16,647 $ 12,092 $ 19,662 $ 15,153 $ 11,330 $ 4,822
Net pounds shipped(6).............................. 351,036 458,505 511,887 568,970 587,932 317,388 314,581
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------------------------- JUNE 30,
1991 1992 1993 1994 1995 1996
--------- --------- --------- --------- --------- -----------
(UNAUDITED)
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Working capital........................................... $ (30,360) $ (20,300) $ (15,197) $ 134,026 $ 153,292 $ 159,027
Total assets.............................................. 329,095 357,103 357,557 439,454 420,684 402,294
Total debt(7)............................................. 116,830 125,000 125,000 -- 48,375 37,169
Total stockholders' equity(7)............................. 165,822 171,540 93,824 242,690 213,063 216,785
</TABLE>
- ------------------------
(1) Prior to March 1995, the Company had an interest in Halco (Mining) Inc. and
received dividends and income from bauxite sales. This investment was
distributed to Comalco Limited in a transaction associated with the
disposition of Comalco's interest in the Company.
(2) Effective January 1, 1993, the Company adopted Statement of Financial
Accounting Standards No. 106, "Employers' Accounting for Postretirement
Benefits Other than Pensions" ("SFAS 106"). This standard requires companies
to accrue the cost of postretirement health care and life insurance benefits
within the employees' active service periods. The Company elected to
recognize the accumulated postretirement benefit obligation immediately upon
adoption of SFAS 106, resulting in a one time charge of $66.4 million at
January 1, 1993.
(3) Earnings per common share and dividends per common share have not been
presented for 1991 through 1994 when the Company was a wholly owned
subsidiary of Comalco Limited.
(4) EBITDA is calculated as income before income taxes, plus interest expense,
depreciation and amortization. EBITDA is not a measure of cash flow as
determined by generally accepted accounting principles ("GAAP"). EBITDA
should not be considered as an alternative to, or more meaningful than, net
income or cash flow as determined in accordance with GAAP as an indicator of
the Company's operating performance or liquidity.
(5) For purposes of computing the ratio of earnings to fixed charges, earnings
consist of income (loss) before income taxes and cumulative effect of change
in accounting principle and fixed charges. Fixed charges consist of interest
expense, capitalized interest and implicit interest associated with
operating leases. For the years ended December 31, 1991 and 1993, the
Company had earnings deficiencies (income (loss) before income taxes and
cumulative effect of accounting change) of approximately $43.0 million and
$11.0 million, respectively.
(6) Net pounds shipped excludes certain shipments of raw materials.
(7) Reflects the contribution to equity in December 1994 of $125 million due to
Comalco Limited, then the parent of the Company, and the distribution of $50
million to Comalco Limited in 1995 in a transaction associated with the
disposition of Comalco's interest in the Company.
12
<PAGE>
RISK FACTORS
Investment in the New Notes involves various risks, including the following
principal factors, which, together with the other matters set forth herein or
incorporated by reference herein, should be carefully considered by prospective
investors.
SUCCESSFUL INTEGRATION OF CASTECH ACQUISITION
The integration and consolidation of the CasTech Acquisition will require
substantial management time and other resources and may pose risks with respect
to production, customer service and market share. While the Company believes
that it has sufficient management and other resources to accomplish the
rationalization and integration of the CasTech Acquisition, there can be no
assurance in this regard or that the Company will not experience difficulties
with customers, suppliers, personnel or others. In addition, although the
Company believes that the CasTech Acquisition will enhance the competitive
position and business prospects of the Company, there can be no assurance that
such benefits will be realized or that the combination of the Company and
CasTech will be more successful than the companies would have been if they had
remained independent.
INCREASED FINANCIAL LEVERAGE
At June 30, 1996, on a pro forma basis after giving effect to the CasTech
Acquisition, the Company would have had approximately $377.3 million of total
indebtedness, and the percentage of total debt to total capitalization
(including the current portion of long-term debt) on a consolidated basis would
have been approximately 64.2%. The degree to which the Company is leveraged
could have important consequences to Holders of the Notes, including the
following: (i) the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, acquisitions or other purposes
may be impaired, (ii) the Company's flexibility in planning for or reacting to
changes in market conditions may be limited and (iii) the Company may be more
vulnerable in the event of a downturn in its business. The Company expects that
its cash flow from operations will be sufficient to cover its expenses,
including fixed charges. However, the Company's ability to satisfy its
obligations will be dependent upon the future performance of the Company, which
will be subject to prevailing economic conditions and to financial, business and
other factors, including factors beyond the control of the Company.
At June 30, 1996, on a pro forma basis after giving effect to the CasTech
Acquisition, the Company would have had approximately $252.3 million in
aggregate borrowings outstanding under the New Bank Credit Facility and
availability under the New Bank Credit Facility of $72.7 million. Revolving
borrowings under the New Bank Credit Facility will mature on September 1, 2001
and all term borrowings under the New Bank Credit Facility will be repaid in
quarterly installments ending on September 1, 2001. There can be no assurance
that the Company will be able to either replace or refinance the New Bank Credit
Facility at maturity.
RANKING OF THE NOTES
The Old Notes are, and the New Notes will be, unsecured, general obligations
of the Company, subordinated in right of payment to all existing and future
Senior Indebtedness of the Company, including indebtedness under the New Bank
Credit Facility. Amounts outstanding under the New Bank Credit Facility are
secured by a first priority security interest in the Company's assets. At June
30, 1996, on a pro forma basis after giving effect to the CasTech Acquisition,
the Company would have had approximately $252.3 million of Senior Indebtedness
outstanding. In the event of bankruptcy, liquidation or reorganization of the
Company, the assets of the Company would be available to pay obligations on the
Notes only after all Senior Indebtedness has been repaid in full. Consequently,
sufficient assets may not exist to pay amounts due on the Notes. In addition,
the subordination provisions of the Indenture provide that no cash payments may
be made with respect to the Notes during the continuance of a payment default
under any
13
<PAGE>
Senior Indebtedness of the Company. Furthermore, if certain nonpayment defaults
exist with respect to certain Senior Indebtedness, the holders of such Senior
Indebtedness would be able to prevent payments on the Notes for certain periods
of time. The Subsidiary Guarantees will be subordinated to Senior Indebtedness
of the Guarantors to the same extent as the Notes are subordinated to Senior
Indebtedness of the Company. See "Description of New Notes--Ranking."
FRAUDULENT CONVEYANCE
Various fraudulent conveyance laws have been enacted for the protection of
creditors and may be utilized by a court to subordinate or avoid the Notes or
any Subsidiary Guarantee in favor of other existing or future creditors of the
Company or a Guarantor.
The net proceeds from the sale of the Old Notes were used, together with the
borrowings under the New Bank Credit Facility, to effect the CasTech
Acquisition. If a court in a lawsuit on behalf of any unpaid creditor of the
Company or a representative of the Company's creditors were to find that, at the
time the Company consummated such transactions, the Company (x) intended to
hinder, delay or defraud any existing or future creditor or contemplated
insolvency with a design to prefer one or more creditors to the exclusion in
whole or in part of others or (y) did not receive fair consideration or
reasonably equivalent value for issuing the Notes and the Company (i) was
insolvent, (ii) was rendered insolvent by reasons of such transaction, (iii) was
engaged or about to engage in a business or transaction for which its remaining
assets constituted unreasonably small capital to carry on its business or (iv)
intended to incur, or believed that it would incur, debts beyond its ability to
pay such debts as they matured, such court could void the Notes and void such
transactions. Alternatively, in such event, claims of the Holders of the Notes
could be subordinated to claims of other creditors of the Company.
The Company's obligations under the Old Notes are, and the New Notes will
be, guaranteed by certain of the Guarantors. To the extent that a court were to
find that (x) a Subsidiary Guarantee was incurred by a Guarantor with intent to
hinder, delay or defraud any present or future creditor or the Guarantor
contemplated insolvency with a design to prefer one or more creditors to the
exclusion in whole or in part of others or (y) such Guarantor did not receive
fair consideration or reasonably equivalent value for issuing its Subsidiary
Guarantee, and such Guarantor (i) was insolvent, (ii) was rendered insolvent by
reason of the issuance of such Subsidiary Guarantee, (iii) was engaged or about
to engage in a business or transaction for which the remaining assets of such
Guarantor constituted unreasonably small capital to carry on its business or
(iv) intended to incur, or believed that it would incur, debts beyond its
ability to pay such debts as they matured, the court could void or subordinate
such Subsidiary Guarantee in favor of such Guarantor's creditors.
The Company's operations are conducted through subsidiaries, and the Company
therefore relies on distributions from its subsidiaries for the funds to service
its indebtedness, including payment of principal of and interest on the Notes.
To the extent that any Subsidiary Guarantees were voided as a fraudulent
conveyance or held unenforceable for any other reason, Holders of the Notes
would cease to have any claim in respect of such Guarantor and would be
creditors solely of the Company and any Guarantor whose Subsidiary Guarantee was
not voided or held unenforceable. In such event, the claims of the Holders of
the Notes against the issuer of an invalid Subsidiary Guarantee would be subject
to the prior payment of all liabilities and preferred stock interests, if any,
of such Guarantor. There can be no assurance that, after providing for all prior
claims and preferred stock interests, if any, there would be sufficient assets
to satisfy the claims of the Holders of the Notes relating to any voided
portions of any of the Subsidiary Guarantees.
The measures of insolvency for purposes of the foregoing will vary depending
on the law of the jurisdiction which is being applied. Generally, however, the
Company or a Guarantor would be considered insolvent at a particular time if the
sum of its debts was then greater than all of its property at a fair valuation
or if the present fair saleable value of its assets was then less than the
amount that would be
14
<PAGE>
required to pay its probable liabilities on its existing debts as they became
absolute and matured. Based upon financial and other information currently
available to it, the Company's management believes that the Old Notes and the
Subsidiary Guarantees were incurred for proper purposes and in good faith and
that each of the Company and each Guarantor (i) was solvent at the time of such
issuance and continues to be solvent after issuing the Old Notes or its
Subsidiary Guarantee, as the case may be, (ii) will have sufficient capital for
carrying on its business, and (iii) will be able to pay its debts as they
mature. There can be no assurance, however, that a court passing on these same
issues would make the same determination.
CYCLICALITY OF END-USE MARKETS
Many of the end-use markets served by the Company, such as the building and
construction and transportation industries, are cyclical and are significantly
affected by changes in general and local economic conditions. These conditions
include the level of economic growth, employment levels, financing availability,
interest rates, consumer confidence and housing demand. The Company believes
that decreases in demand resulting from these conditions in its principal
markets in North America have adversely affected demand for, and prices of, many
of its products in the past and may do so again in the future. A prolonged
recession in the Company's principal markets could have a material adverse
effect on its financial condition or results of operations.
ALUMINUM METAL PRICE VOLATILITY
Aluminum scrap and primary aluminum metal prices are subject to significant
cyclical price fluctuations. For example, the average annual cash price per
pound of aluminum for transactions on the London Metals Exchange ("LME")
increased from $.54 in 1986 to $1.17 in 1988, declined to $.52 in 1993 and rose
to $.82 in 1995. On October 3, 1996, the LME cash price was $.59. Purchases of
metal for forward delivery and hedging with futures and options contracts are
used to reduce the Company's aggregate exposure at any time to the risk of
changes in metal prices. While changes in aluminum prices can cause the
Company's net sales to change significantly from period to period, net income is
more directly impacted by the fluctuation in material margins. During the second
quarter of 1996, the industry remained highly competitive as the Company's
material margins fell to their lowest levels in over two years, continuing a
trend that began during the third quarter of 1995, when, in anticipation of
falling metal prices, customers began shortening their lead times for new
orders. The Company intends to continue to base the selling prices of its
products upon the associated aluminum metal costs, as set by purchases for
forward delivery or hedging, but there can be no assurance that it will be able
to pass all increases in aluminum metal costs through to its customers or that
material margins will not continue to decrease. Significant increases in the
price of aluminum scrap or primary aluminum metal, if not offset by product
price increases, would have a material adverse effect on the Company's financial
condition or results of operations.
ENVIRONMENTAL CONSIDERATIONS
The Company's operations are subject to numerous and increasingly stringent
environmental laws and regulations governing protection of the environment,
including those relating to air emissions, wastewater discharges, the handling,
disposal and remediation of hazardous substances and wastes and employee health
and safety. Future environmental regulations, including those under the Clean
Air Act, are expected to impose stricter compliance requirements on the aluminum
industry in general. While the current cost of environmental compliance does not
have a material adverse effect upon the Company and the Company does not believe
that currently anticipated future requirements are likely to have a material
adverse effect on the Company, there can be no assurance that future capital
expenditures and costs for environmental compliance will not have a material
adverse effect on the Company's financial condition, results of operations or
liquidity.
In addition, historical and present manufacturing activities at current and
formerly-owned properties and adjacent areas have resulted in environmental
impacts requiring remediation. Financial responsibility
15
<PAGE>
for the remediation of contaminated property or for the amelioration of damage
to natural resources can be imposed on the Company where its current or prior
operations have had an environmental impact or where properties it currently or
historically owned or operated, or to which it sent hazardous waste, are
contaminated, whether by the Company or otherwise. The Company, its predecessor
companies and third parties historically have disposed of hazardous waste,
including salt cake fines and oxides, in landfills or other surface impoundments
or at inactive underground mining sites. This disposal activity has in some
cases resulted in contamination of the soil, groundwater or surface water and in
the emission of vapors generated as the hazardous waste reacts with water. As a
result, several sites owned or operated by the Company have been placed on the
National Priorities List or on other lists of environmentally-impacted sites or
are the subject of regulatory clean-up orders. The Company is performing
clean-up or remediation activities or taking other protective measures at those
sites, such as removing the hazardous waste from the property or preventing the
off-site migration of contamination. With respect to these activities the
Company has recorded accruals to cover future costs which, based on its analysis
of currently available information, the Company believes are probable of
occurring and reasonably estimable. However, there can be no assurance that
additional accruals will not be required in the future, which may be material to
the Company, due to the fact that (i) complete technical information regarding
the type and extent of contamination is not available with respect to some or
all of the issues at the affected properties, which means the scope and cost of
a viable remedial action plan may not have been defined or may be subject to
change as further information becomes available, (ii) clean-up or remediation
plans must be approved by regulatory authorities and most sites have not
received all required approvals, and (iii) new facts may be identified during
the course of further investigation performed by the Company or required by
regulatory authorities which could lead to additional clean-up or remedial
requirements. The Company believes, based upon information currently available
to management, that environmental matters will not have a material adverse
effect on the Company's financial condition, results of operations or liquidity,
although resolution of certain items in any particular year or quarter could be
material to the results of operations or liquidity for that period. However,
there can be no assurance that future environmental requirements with respect to
the operation of the Company's business, current and formerly owned or operated
properties or adjacent areas or at third party disposal sites will not have a
material adverse effect on the Company's financial condition, results of
operation or liquidity. See "Business--Environmental Matters" in the Form 10-K.
RESTRICTIONS IMPOSED BY THE NEW BANK CREDIT FACILITY AND THE INDENTURE
The New Bank Credit Facility and the Indenture contain certain restrictive
covenants, including, among others, covenants limiting the Company's and certain
of its subsidiaries' ability to incur additional indebtedness, pay dividends,
make certain investments, consummate certain asset sales, enter into
transactions with affiliates, incur liens, create restrictions on the ability of
certain subsidiaries to pay dividends or make certain payments to the Company,
merge or consolidate with any other person or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of the assets of the
Company. Although the covenants are subject to various exceptions which are
designed to allow the Company to operate without undue restraint, there can be
no assurance that such covenants will not adversely affect its ability to
finance future operations or capital needs or engage in other business
activities which may be in the interest of the Company. In addition, the Company
is required under the New Bank Credit Facility to maintain specified financial
ratios. The ability of the Company to comply with such provisions may be
affected by events beyond the Company's control. A breach of any of these
covenants or the inability of the Company to comply with the required financial
ratios could result in a default under the New Bank Credit Facility, which would
entitle the lenders to accelerate the maturity of the New Bank Credit Facility,
and could result in cross-defaults permitting the acceleration of other Senior
Indebtedness or other indebtedness under other agreements. Such an event would
adversely affect the Company's ability to make payments on the Notes.
16
<PAGE>
RELIANCE ON IMCO
IMCO Recycling, Inc. ("IMCO") processes aluminum scrap to supply
substantially all of the requirements for CasTech's Ohio rolling mill. While the
Company believes CasTech's alliance with IMCO has provided a long-term source of
high quality recycled aluminum for its largest rolling mill, production
disruptions or other factors affecting IMCO could interrupt or temporarily
reduce the supply of reprocessed aluminum to CasTech's Ohio rolling mill and
adversely impact the Company. CasTech is responsible for the treatment and
disposal of substantially all of the waste generated as a result of IMCO's
processing services on behalf of CasTech. CasTech has agreed to indemnify IMCO
against damages and liabilities arising from CasTech's treatment and disposal of
such waste. Nonpayment, uncured defaults and certain events of bankruptcy
relating to CasTech would enable IMCO to terminate the agreement underlying the
alliance.
COMPETITIVE INDUSTRY
The market for aluminum sheet products is diverse and highly competitive.
The Company competes in the production and sale of common alloy aluminum sheet
products with some 27 other aluminum rolling mills in the United States and
Canada (including large, single purpose can sheet mills, other continuous
casters and other multi-purpose mills, some of which are larger and have greater
financial and technical resources than the Company) and with imported products.
In its major markets, the Company competes with other rolled products suppliers,
principally the multipurpose mills, on the basis of quality, price, timeliness
of delivery and customer service. Aluminum also competes with other materials
such as steel, plastic and glass for various applications. Higher or lower
aluminum prices tend to make aluminum products less or more competitive with
these alternative materials. To respond to such competitive forces will require
continued investment by the Company in technology and product development. There
can be no assurance that the Company will continue to have sufficient resources
to continue to make such investments. See "Business--Competition" in the Form
10-K.
POTENTIAL LACK OF FUNDING FOR CHANGE OF CONTROL OFFER
In the event of a Change of Control, the Company will be required, subject
to certain conditions, to offer to purchase all outstanding Notes at a purchase
price equal to 101% of the principal amount thereof, plus accrued interest to
the date of repurchase. The New Bank Credit Facility restricts such a purchase
and the offer would require the approval of the lenders thereunder. Accordingly,
the right of the Holders of the Notes to require the Company to repurchase the
Notes may be of limited value if the Company cannot obtain approval under the
New Bank Credit Facility. There can be no assurance that the Company will have
the financial resources necessary to purchase the Notes upon a Change of
Control. Failure to offer to repurchase the Notes under such circumstances,
however, would constitute an Event of Default under the Indenture. See
"Description of New Notes--Repurchase of Notes upon a Change of Control."
LACK OF PUBLIC MARKET FOR THE NOTES
The New Notes are a new issue of securities for which there is currently no
trading market. If the New Notes are traded after their initial issuance, they
may trade at a discount from their principal amount, depending upon prevailing
interest rates, the market for similar securities and other factors, including
general economic conditions and the financial condition and performance of, and
prospects for, the Company. Morgan Stanley & Co. Incorporated and NatWest
Capital Markets Limited have advised the Company that they currently intend to
make a market in the Old Notes and the New Notes. However, they are not
obligated to do so, and any market making activity with respect to the Old Notes
and the New Notes may be discontinued at any time without notice. Accordingly,
there can be no assurance as to the development or liquidity of any market for
the Old Notes and the New Notes. The Company does not intend to apply for
listing of the New Notes on any securities exchange or for quotation through the
National Association of Securities Dealers Automated Quotation System.
17
<PAGE>
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the New
Notes offered hereby. In consideration for issuing the New Notes as contemplated
in this Prospectus, the Company will receive in exchange Old Notes in like
principal amount, the terms of which are the same in all material respects as
the form and terms of to the New Notes except that the New Notes have been
registered under the Securities Act and will not contain terms restricting the
transfer thereof. The Old Notes surrendered in exchange for the New Notes will
be retired and cancelled and cannot be reissued. Accordingly, issuance of the
New Notes will not result in any increase in the indebtedness of the Company.
The net proceeds received by the Company from the offering of the Old Notes
was estimated to be $120.6 million. The Company applied the net proceeds from
the offering of the Old Notes to effect the CasTech Acquisition.
18
<PAGE>
THE EXCHANGE OFFER
GENERAL
In connection with the sale of the Old Notes, the purchasers thereof became
entitled to the benefits of certain registration rights (the "Registration
Rights"). Pursuant to the agreement governing the Registration Rights (the
"Registration Rights Agreement"), the Company agreed to use its reasonable best
efforts, at its cost, to file and cause to become effective a registration
statement with respect to the Exchange Offer to exchange the Old Notes for the
New Notes. Upon such registration statement being declared effective, the
Company has agreed to offer the New Notes in return for surrender of the Old
Notes. For each Old Note surrendered to the Company under the Exchange Offer,
the Holder will receive a New Note of equal principal amount. Interest on each
New Note will accrue from September 20, 1996. In the event that applicable
interpretations of the staff of the Commission do not permit the Company to
effect the Exchange Offer or under certain other circumstances, the Company has
agreed, at its cost, to use its reasonable best efforts to cause to become
effective a shelf registration statement (the "Shelf Registration Statement")
with respect to resales of the Old Notes and to keep such registration statement
effective until September 20, 1999. The Company shall, in the event of such a
shelf registration, provide to each holder copies of the prospectus, notify each
holder when the Shelf Registration Statement for the Old Notes has become
effective and take certain other actions as are required to permit resales of
the Old Notes.
In the event an Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective on or prior to April 1, 1997, then the
annual interest rate borne by the Old Notes shall be increased to 11 1/4%. If
such Exchange Offer is not consummated or such Shelf Registration Statement is
not declared effective by October 1, 1997, then the annual interest rate borne
by the Old Notes shall be increased by an additional 0.5%. Upon consummation of
such Exchange Offer or the effectiveness of such Shelf Registration Statement,
the interest rate borne by the Old Notes will revert to 10 3/4%.
In the event an exchange offer is consummated, the Company will not be
required under the Registration Rights Agreement to file the Shelf Registration
Statement to register any outstanding Old Notes, and the interest rate on such
Old Notes will remain at its initial level of 10 3/4%. The Exchange Offer shall
be deemed to have been consummated upon the earlier to occur of (i) the Company
having exchanged New Notes for all outstanding Old Notes (other than Old Notes
held by a Restricted Holder) pursuant to the Exchange Offer and (ii) the Company
having exchanged, pursuant to the Exchange Offer, New Notes for all Old Notes
that have been tendered and not withdrawn on the date that is 30 days following
the commencement of such Exchange Offer. In such event, holders of Old Notes
seeking liquidity in their investment would have to rely on exemptions to
registration requirements under the securities laws, including the Securities
Act. See "Description of New Notes--Registration Rights Agreement" and "Risk
Factors."
Upon the terms and subject to the conditions set forth in this Prospectus
and in the accompanying Letter of Transmittal, the Company will accept all Old
Notes properly tendered prior to 5:00 p.m., New York City time, on the
Expiration Date. The Company will issue $1,000 principal amount of New Notes in
exchange for each $1,000 principal amount of outstanding Old Notes accepted in
the Exchange Offer. Holders may tender some or all of their Old Notes pursuant
to the Exchange Offer in denominations of $1,000 and integral multiples thereof.
Based on no-action letters issued by the staff of the Commission to third
parties, the Company believes that the New Notes issued pursuant to the Exchange
Offer in exchange for Old Notes may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery
requirements of the Securities Act provided that such New Notes are acquired in
the ordinary course of such holders' business and such holders have no
arrangement with any person to participate in the distribution of such New
Notes. Any holder of Old Notes who tenders in the Exchange Offer for the purpose
of participating in a distribution of the New
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<PAGE>
Notes could not rely on such interpretation by the staff of the Commission and
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. Each broker-dealer
that receives New Notes for its own account in exchange for Old Notes, where
such Old Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. See "Plan of
Distribution."
As of the date of this Prospectus, $125,000,000 aggregate principal amount
of the Old Notes is outstanding. In connection with the issuance of the Old
Notes, the Company arranged for the Old Notes to be eligible for trading in the
Private Offering, Resale and Trading through Automated Linkages (PORTAL) Market,
the National Association of Securities Dealers' screen based, automated market
trading of securities eligible for resale under Rule 144A under the Securities
Act.
This Prospectus, together with the accompanying letter of transmittal (the
"Letter of Transmittal"), is being sent to all registered holders as of
, 1996 (the "Record Date").
The Company shall be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to Harris
Trust and Savings Bank (the "Exchange Agent"). See "Exchange Agent." The
Exchange Agent will act as agent for the tendering holders of Old Notes for the
purpose of receiving New Notes from the Company and delivering New Notes to such
holders.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender or the occurrence of certain other events set forth herein,
certificates for any such unaccepted Old Notes will be returned, without
expense, to the tendering holder thereof as promptly as practicable after the
Expiration Date.
Holders of Old Notes who tender in the Exchange Offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of Old Notes
pursuant to the Exchange Offer. The Company will pay all charges and expenses,
other than certain applicable taxes, in connection with the Exchange Offer. See
"Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean , 1996, unless the
Company, in its sole discretion, extends the Exchange Offer, in which case the
term "Expiration Date" shall mean the latest date to which the Exchange Offer is
extended.
In order to extend the Expiration Date, the Company will notify the Exchange
Agent of any extension by oral or written notice and will mail to the record
holders of Old Notes an announcement thereof, prior to 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
Such announcement may state that the Company is extending the Exchange Offer for
a specified period of time.
The Company reserves the right (i) to delay acceptance of any Old Notes, to
extend the Exchange Offer or to terminate the Exchange Offer and to refuse to
accept Old Notes not previously accepted, if any of the conditions set forth
herein under "Termination" shall have occurred and shall not have been waived by
the Company (if permitted to be waived by the Company), by giving oral or
written notice of such delay, extension or termination to the Exchange Agent,
and (ii) to amend the terms of the Exchange Offer in any manner deemed by it to
be advantageous to the holders of the Old Notes. Any such delay in acceptance,
extension, termination or amendment will be followed as promptly as practicable
by oral or written notice thereof. If the Exchange Offer is amended in a manner
determined by the Company to constitute a material change, the Company will
promptly disclose such amendment in a manner reasonably calculated to inform the
holders of the Old Notes of such amendment.
20
<PAGE>
Without limiting the manner in which the Company may choose to make public
announcements of any delay in acceptance, extension, termination or amendment of
the Exchange Offer, the Company shall have no obligation to publish, advertise,
or otherwise communicate any such public announcement, other than by making a
timely release to the Dow Jones News Service.
INTEREST ON THE NEW NOTES
The New Notes will bear interest from September 20, 1996, payable
semiannually on April 1 and October 1, of each year commencing on April 1, 1997,
at the rate of 10 3/4% per annum. Holders of Old Notes whose Old Notes are
accepted for exchange will be deemed to have waived the right to receive any
payment in respect of interest on the Old Notes accrued from September 20, 1996
until the date of the issuance of the New Notes. Consequently, holders who
exchange their Old Notes for New Notes will receive the same interest payment on
April 1, 1997 (the first interest payment date with respect to the Old Notes and
the New Notes) that they would have received had they not accepted the Exchange
Offer.
PROCEDURES FOR TENDERING
To tender in the Exchange Offer, a holder must complete, sign and date the
Letter of Transmittal, or a facsimile thereof, have the signatures thereon
guaranteed if required by the Letter of Transmittal, and mail or otherwise
deliver such Letter of Transmittal or such facsimile, together with the Old
Notes (unless such tender is being effected pursuant to the procedure for
book-entry transfer described below) and any other required documents, to the
Exchange Agent prior to 5:00 p.m., New York City time, on the Expiration Date.
Any financial institution that is a participant in DTC's Book-Entry Transfer
Facility system may make book-entry delivery of the Old Notes by causing DTC to
transfer such Old Notes into the Exchange Agent's account in accordance with
DTC's procedure for such transfer. Although delivery of Old Notes may be
effected through book-entry transfer into the Exchange Agent's account at DTC,
the Letter of Transmittal (or facsimile thereof), with any required signature
guarantees and any other required documents, must, in any case, be transmitted
to and received or confirmed by the Exchange Agent at its addresses set forth
herein under "Exchange Agent" prior to 5:00 p.m., New York City time, on the
Expiration Date. DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH ITS PROCEDURES
DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The tender by a holder of Old Notes will constitute an agreement between
such holder and the Company in accordance with the terms and subject to the
conditions set forth herein and in the Letter of Transmittal.
Delivery of all documents must be made to the Exchange Agent at its address
set forth herein. Holders may also request that their respective brokers,
dealers, commercial banks, trust companies or nominees effect such tender for
such holders.
The method of delivery of Old Notes and the Letter of Transmittal and all
other required documents to the Exchange Agent is at the election and risk of
the holders. Instead of delivery by mail, it is recommended that holders use an
overnight or hand delivery service. In all cases, sufficient time should be
allowed to assure timely delivery. No Letter of Transmittal or Old Notes should
be sent to the Company.
Only a holder of Old Notes may tender such Old Notes in the Exchange Offer.
The term "holder" with respect to the Exchange Offer means any person in whose
name Old Notes are registered on the books of the Company or any other person
who has obtained a properly completed bond power from the registered holder, or
any person whose Old Notes are held of record by DTC who desires to deliver such
Old Notes by book-entry transfer at DTC.
Any beneficial holder whose Old Notes are registered in the name of his
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact such registered holder
21
<PAGE>
promptly and instruct such registered holder to tender on his behalf. If such
beneficial holder wishes to tender on his own behalf, such beneficial holder
must, prior to completing and executing the Letter of Transmittal and delivering
his Old Notes, either make appropriate arrangements to register ownership of the
Old Notes in such holder's name or obtain a properly completed bond power from
the registered holder. The transfer of record ownership may take considerable
time.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the case
may be, must be guaranteed by a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Exchange Act (an "Eligible Institution") unless the Old Notes tendered
pursuant thereto are tendered (i) by a registered holder who has not completed
the box entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on the Letter of Transmittal or (ii) for the account of an
Eligible Institution.
If the Letter of Transmittal is signed by a person other than the registered
holder of any Old Notes listed therein, such Old Notes must be endorsed or
accompanied by appropriate bond powers which authorize such person to tender the
Old Notes on behalf of the registered holder, in either case signed as the name
of the registered holder or holders appears on the Old Notes.
If the Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and unless waived by the Company,
evidence satisfactory to the Company of their authority to so act must be
submitted with the Letter of Transmittal.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of the tendered Old Notes will be determined
by the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes the Company's acceptance of which would,
in the opinion of counsel for the Company, be unlawful. The Company also
reserves the absolute right to waive any irregularities or conditions of tender
as to particular Old Notes. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in the Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of Old Notes must be cured
within such time as the Company shall determine. Neither the Company, the
Exchange Agent nor any other person shall be under any duty to give notification
of defects or irregularities with respect to tenders of Old Notes nor shall any
of them incur any liability for failure to give such notification. Tenders of
Old Notes will not be deemed to have been made until such irregularities have
been cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost by the Exchange Agent to the
tendering holder of such Old Notes unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the Expiration Date.
In addition, the Company reserves the right in its sole discretion to (a)
purchase or make offers for any Old Notes that remain outstanding subsequent to
the Expiration Date, or, as set forth under "Termination," to terminate the
Exchange Offer and (b) to the extent permitted by applicable law, purchase Old
Notes in the open market, in privately negotiated transactions or otherwise. The
terms of any such purchases or offers may differ from the terms of the Exchange
Offer.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, or (ii) who cannot deliver their Old Notes, the Letter of
Transmittal or any other required documents to the
22
<PAGE>
Exchange Agent prior to the Expiration Date, or if such Holder cannot complete
the procedure for book-entry transfer on a timely basis, may effect a tender if:
(a) The tender is made through an Eligible Institution;
(b) Prior to the Expiration Date, the Exchange Agent receives from such
Eligible Institution a properly completed and duly executed Notice of Guaranteed
Delivery (by facsimile transmission, mail or hand delivery) setting forth the
name and address of the holder of the Old Notes, the certificate number or
numbers of such Old Notes and the principal amount of Old Notes tendered,
stating that the tender is being made thereby, and guaranteeing that, within
five business days after the Expiration Date, the Letter of Transmittal (or
facsimile thereof), together with the certificate(s) representing the Old Notes
to be tendered in prior form for transfer and any other documents required by
the Letter of Transmittal, will be deposited by the Eligible Institution with
the Exchange Agent; and
(c) Such properly completed and executed Letter of Transmittal (or facsimile
thereof), together with the certificate(s) representing all tendered Old Notes
in proper form for transfer (or confirmation of a book-entry transfer into the
Exchange Agent's account at DTC of Old Notes delivered electronically) and all
other documents required by the Letter of Transmittal are received by the
Exchange Agent within five business days after the Expiration Date.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Old Notes may be withdrawn
at any time prior to 5:00 p.m., New York City time, on the business day prior to
the Expiration Date, unless previously accepted for exchange.
To withdraw a tender of Old Notes in the Exchange Offer, a written or
facsimile transmission notice of withdrawal must be received by the Exchange
Agent at its address set forth herein prior to 5:00 p.m., New York City time, on
the business day prior to the Expiration Date and prior to acceptance for
exchange thereof by the Company. Any such notice of withdrawal must (i) specify
the name of the person having deposited the Old Notes to be withdrawn (the
"Depositor"), (ii) identify the Old Notes to be withdrawn (including the
certificate number or numbers and principal amount of such Old Notes), (iii) be
signed by the Depositor in the same manner as the original signature on the
Letter of Transmittal by which such Old Notes were tendered (including any
required signature guarantees) or be accompanied by documents of transfer
sufficient to permit the Trustee with respect to the Old Notes to register the
transfer of such Old Notes into the name of the Depositor withdrawing the tender
and (iv) specify the name in which any such Old Notes are to be registered, if
different from that of the Depositor. All questions as to the validity, form and
eligibility (including time of receipt) of such withdrawal notices will be
determined by the Company, whose determination shall be final and binding on all
parties. Any Old Notes so withdrawn will be deemed not to have been validly
tendered for purposes of the Exchange Offer and no New Notes will be issued with
respect thereto unless the Old Notes so withdrawn are validly retendered. Any
Old Notes which have been tendered but which are not accepted for exchange will
be returned to the holder thereof without cost to such holder as soon as
practicable after withdrawal, rejection of tender or termination of the Exchange
Offer. Properly withdrawn Old Notes may be retendered by following one of the
procedures described above under "Procedures for Tendering" at any time prior to
the Expiration Date.
TERMINATION
Notwithstanding any other term of the Exchange Offer, the Company will not
be required to accept for exchange, or exchange New Notes for, any Old Notes not
theretofore accepted for exchange, and may terminate or amend the Exchange Offer
as provided herein before the acceptance of such Old Notes if: (i) any action or
proceeding is instituted or threatened in any court or by or before any
governmental agency with respect to the Exchange Offer, which, in the Company's
judgment, might materially impair the Company's ability to proceed with the
Exchange Offer, (ii) any law, statute, rule or regulation is proposed,
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<PAGE>
adopted or enacted, or any existing law, statute rule or regulation is
interpreted by the staff of the Commission in a manner, which, in the Company's
judgment, might materially impair the Company's ability to proceed with the
Exchange Offer, or (iii) the Company reasonably deems it advisable to terminate
the Exchange Offer.
If the Company determines that it may terminate the Exchange Offer, as set
forth above, the Company may (i) refuse to accept any Old Notes and return any
Old Notes that have been tendered to the holders thereof, (ii) extend the
Exchange Offer and retain all Old Notes tendered prior to the Expiration of the
Exchange Offer, subject to the rights of such holders of tendered Old Notes to
withdraw their tendered Old Notes, or (iii) waive such termination event with
respect to the Exchange Offer and accept all properly tendered Old Notes that
have not been withdrawn. If such waiver constitutes a material change in the
Exchange Offer, the Company will disclose such change by means of a supplement
to this Prospectus that will be distributed to each registered holder of Old
Notes, and the Company will extend the Exchange Offer for a period of five to
ten business days, depending upon the significance of the waiver and the manner
of disclosure to the registered holders if the Old Notes, if the Exchange Offer
would otherwise expire during such period. See "Description of New
Notes--Registration Rights Agreement."
EXCHANGE AGENT
Harris Trust and Savings Bank, the Trustee under the Indenture, has been
appointed as Exchange Agent for the Exchange Offer. Questions and requests for
assistance and requests for additional copies of this Prospectus or of the
Letter of Transmittal should be directed to the Exchange Agent addressed as
follows:
<TABLE>
<S> <C>
By Mail: Harris Trust and Savings Bank
c/o Harris Trust Company
of New York
P.O. Box 1010
Wall Street Station
New York, NY 10268
Attention: Mark Zimkind
By Hand or
Overnight Courier: Harris Trust and Savings Bank
c/o Harris Trust Company
of New York
77 Water Street
4th Floor
New York, NY 10004
Attention: Mark Zimkind
</TABLE>
Facsimile Transmission: (212) 701-7636
Confirm by Telephone: (212) 701-7624
FEES AND EXPENSES
The expenses of soliciting tenders pursuant to the Exchange Offer will be
borne by the Company. The principal solicitation for tenders pursuant to the
Exchange Offer is being made by mail. Additional solicitations may be made by
officers and employees of the Company and its affiliates in person, by telegraph
or telephone.
24
<PAGE>
The Company will not make any payments to brokers, dealers or other persons
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
the Exchange Agent for its reasonable out-of-pocket expenses in connection
therewith. The Company may also pay brokerage houses and other custodians,
nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them
in forwarding copies of this Prospectus, Letters of Transmittal and related
documents to the beneficial owners of the Old Notes and in handling or
forwarding tenders for exchange.
The expenses to be incurred in connection with the Exchange Offer, including
fees and expenses of the Exchange Agent and Trustee and accounting and legal
fees, will be paid by the Company.
The Company will pay all transfer taxes, if any, applicable to the exchange
of Old Notes pursuant to the Exchange Offer. If, however, certificates
representing New Notes or Old Notes for principal amounts not tendered or
accepted for exchange are to be delivered to, or are to be registered or issued
in the name of, any person other than the registered holder of the Old Notes
tendered, or if tendered Old Notes are registered in the name of any person
other than the person signing the Letter of Transmittal, or if a transfer tax is
imposed for any reason other than the exchange of Old Notes pursuant to the
Exchange Offer, then the amount of any such transfer taxes (whether imposed on
the registered holder or any other persons) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted with the Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering holder.
ACCOUNTING TREATMENT
No gain or loss for accounting purposes will be recognized by the Company
upon the consummation of the Exchange Offer. The expenses of the Exchange Offer
will be amortized by the Company over the term of the New Notes under generally
accepted accounting principles.
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<PAGE>
DESCRIPTION OF NEW NOTES
The Old Notes were, and the New Notes will be, issued under an Indenture,
dated as of September 20, 1996 (the "Indenture"), among the Company, as Issuer,
each Restricted Subsidiary of the Company (other than any Immaterial
Subsidiary), as Guarantors, and Harris Trust and Savings Bank, as Trustee (the
"Trustee"). The Indenture is governed by the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
The following summary of certain provisions of the Indenture and the Notes
does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of the Indenture and the Notes
including the definitions of certain terms therein and those terms made a part
thereof by the Trust Indenture Act. Whenever particular Sections or defined
terms of the Indenture not otherwise defined herein are referred to, such
Sections or defined terms are incorporated herein by reference. References in
this section to the "Notes" shall be references to the Old Notes and the New
Notes.
The Indenture authorizes a maximum principal amount of $125,000,000 of Notes
at any one time outstanding. The New Notes will be issued solely in exchange for
an equal principal amount of Old Notes pursuant to the Exchange Offer. See
"--Registration Rights Agreement." The terms of the New Notes will be the same
in all material respects as the form and terms of the Old Notes except that (i)
interest thereon will accrue from the last date on which interest was paid on
the Old Notes, or if no such interest has been paid, from September 20, 1996,
(ii) the New Notes will not contain restrictions on transfer and (iii) the New
Notes will not contain provisions relating to an increase in their interest rate
under certain circumstances.
GENERAL
The Old Notes are, and the New Notes will be, unsecured senior subordinated
obligations of the Company and will mature on October 1, 2006. The Old Notes
will bear interest at the 10 3/4% from September 20, 1996 or from the most
recent Interest Payment Date to which interest has been paid or provided for,
payable semiannually (to Holders of record at the close of business on March 15
or September 15, immediately preceding the Interest Payment Date) on April 1 and
October 1 of each year, commencing April 1, 1997. The interest rate on the Old
Notes is subject to increase in certain circumstances as described under
"--Registration Rights Agreement".
Principal of, premium, if any, and interest on the Notes will be payable at
the corporate trust office of the Trustee in Chicago, Illinois, and the Notes
may be presented for registration of transfer or exchange, at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York (which initially will be the office of Harris Trust Company
of New York, 177 Water Street, New York, New York); PROVIDED that, at the option
of the Company, payment of interest may be made by check mailed to the address
of the Holders as such address appears in the Security Register. Notwithstanding
the foregoing, upon written instructions from a registered Holder of $5.0
million or more aggregate principal amount of Notes in definitive form not less
than 15 days prior to an Interest Payment Date for the Notes, payment of
interest will be made by transfer by the Trustee of immediately available funds
to such account at such bank in the United States as such registered Holder
shall have designated. Interest payable on the Notes held through DTC will be
available to DTC participants (as defined herein) on the business day following
payment thereof by the Company.
The New Notes will be issued only in fully registered form, without coupons,
in denominations of $1,000 of principal amount and any integral multiple
thereof. No service charge will be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any transfer tax or other similar governmental charge payable in
connection therewith.
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<PAGE>
OPTIONAL REDEMPTION
Except as set forth in the following paragraph, the Notes will not be
redeemable prior to October 1, 2001. At any time on or after that date, the
Notes will be redeemable, at the Company's option, in whole or in part, upon not
less than 30 nor more than 60 days' prior notice mailed by first class mail to
each Holder's address appearing in the Security Register, at the following
Redemption Prices (expressed in percentages of principal amount), plus accrued
interest to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest Payment
Date that is on or prior to the Redemption Date), if redeemed during the
12-month period commencing October 1 of the years set forth below:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
- -------------------------------------------------------------------------------- ----------------
<S> <C>
2001............................................................................ 105.375%
2002............................................................................ 102.688
2003 and thereafter............................................................. 100.000
</TABLE>
In addition, at any time prior to October 1, 1999, the Company may redeem in
the aggregate up to $43.75 million aggregate principal amount of the Notes out
of the proceeds of one or more Public Equity Offerings, at a Redemption Price
(expressed as a percentage of principal amount) of 110.75% plus accrued interest
to the Redemption Date (subject to the right of Holders of record on the
relevant Regular Record Date to receive interest due on an Interest Payment Date
that is on or prior to the Redemption Date); PROVIDED that (i) at least $65.0
million aggregate principal amount of the Notes must remain outstanding after
each such redemption; and (ii) such redemption shall occur within 60 days of the
date of the closing of such Public Equity Offering.
If less than all of the Notes are to be redeemed, the Trustee shall select
by such method as the Trustee shall deem to be fair and appropriate the
particular Notes to be redeemed or any portion thereof that is an integral
multiple of $1,000.
The Notes will not have the benefit of a sinking fund.
SUBSIDIARY GUARANTEES
Pursuant to the Indenture, each of the Company's Restricted Subsidiaries
(other than any Immaterial Subsidiary) has, jointly and severally, Guaranteed
the Company's obligations under the Notes on an unsecured senior subordinated
basis (each such Guarantee, a "Subsidiary Guarantee," and each such Subsidiary
and each Person who enters into such a Guarantee subsequent to the date of the
Indenture, a "Guarantor"). In addition, the Indenture contains a covenant
requiring the Company to cause any future Restricted Subsidiary (other than a
Securitization Subsidiary and any Immaterial Subsidiary (for so long as such
Immaterial Subsidiary remains an Immaterial Subsidiary)) to enter into and
deliver a Subsidiary Guarantee.
The Indebtedness evidenced by each Subsidiary Guarantee (including the
payment of principal of, premium, if any, and interest on the Notes) will be
subordinated to Senior Indebtedness of the Guarantor on the same basis as the
Notes are subordinated to Senior Indebtedness of the Company. See "--Ranking."
As of June 30, 1996, on a pro forma basis after giving effect to the CasTech
Acquisition, the Guarantors had an aggregate of approximately $252.3 million of
Senior Indebtedness outstanding.
The Subsidiary Guarantee of each Guarantor shall be automatically and
unconditionally released and discharged upon any sale, exchange or transfer
(which sale, exchange or transfer is not prohibited by the Indenture) to a
Person other than the Company or a Restricted Subsidiary of (i) all of the
Capital Stock owned by the Company or any Subsidiary of the Company of such
Guarantor or (ii) all or substantially all the assets of such Guarantor;
PROVIDED that in connection with any such sale, exchange or transfer to an
Affiliate of the Company, the Company must first obtain a favorable written
opinion from a nationally
27
<PAGE>
recognized investment banking firm as to the fairness from a financial point of
view of such transaction to the Company or such Guarantor, as the case may be.
RANKING
The indebtedness evidenced by the Old Notes is, and the New Notes will be,
unsecured, general obligations of the Company, subordinated in right of payment,
as set forth in the Indenture, to the prior payment of all present and future
Senior Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter incurred, including the Company's Obligations under the New Bank
Credit Facility (as of June 30, 1996, on a pro forma basis after giving effect
to the CasTech Acquisition, the Company (excluding its Subsidiaries and
Guarantees of Indebtedness of its Subsidiaries) would have had no Senior
Indebtedness outstanding). In addition, the Old Notes are, and the New Notes
will be, effectively subordinated in right of payment to Senior Indebtedness of
the Guarantors. See "--Subsidiary Guarantees."
All Indebtedness of the Company that is Senior Indebtedness will rank senior
to the Notes in accordance with the provisions of the Indenture. The Notes will
in all respects rank PARI PASSU in right of payment with all other Senior
Subordinated Indebtedness of the Company. The Company has agreed in the
Indenture that it will not, and will not permit any Guarantor to, Incur,
directly or indirectly, any Indebtedness that is subordinate or junior in
ranking in right of payment to its Senior Indebtedness unless such Indebtedness
is Senior Subordinated Indebtedness or is expressly subordinated in right of
payment to Senior Subordinated Indebtedness. Unsecured Indebtedness is not
deemed to be subordinated or junior to Secured Indebtedness merely because it is
unsecured.
The Company may not pay principal of, premium, if any, or interest on the
Notes, or redeem (or make a deposit in redemption of), defease or repurchase any
of the Notes if (i) Designated Senior Indebtedness of the Company or Senior
Indebtedness of the Company with an aggregate principal amount in excess of $5.0
million then outstanding is not paid when due or (ii) any other default on
Designated Senior Indebtedness of the Company or Senior Indebtedness of the
Company with an aggregate principal amount in excess of $5.0 million then
outstanding occurs and the maturity of such Designated Senior Indebtedness or
Senior Indebtedness is accelerated in accordance with its terms unless, in
either case, the default has been cured or waived and any such acceleration has
been rescinded or such Designated Senior Indebtedness or such Senior
Indebtedness has been paid in full. However, the Company may pay the Notes
without regard to the foregoing if the Company and the Trustee receive written
notice approving such payment from the holders or Representative of the holders
of such Designated Senior Indebtedness or Senior Indebtedness with respect to
which either of the events set forth in clause (i) or (ii) of the immediately
preceding sentence has occurred and is continuing. During the continuance of any
default (other than a default described in clause (i) or (ii) of the second
preceding sentence) with respect to any Designated Senior Indebtedness of the
Company pursuant to which the maturity thereof may be accelerated, the Company
may not pay the Notes for a period (a "Payment Blockage Period") commencing upon
receipt by the Trustee (with a copy to the Company) of written notice (a
"Blockage Notice") of such default from the holders or Representative of such
holders of such Designated Senior Indebtedness specifying an election to effect
a Payment Blockage Period and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated (i) by written notice to the Trustee and
the Company from the Person or Persons who gave such Blockage Notice, (ii)
because the default giving rise to such Blockage Notice is no longer continuing
or (iii) because such Designated Senior Indebtedness has been repaid in full).
Notwithstanding the provisions described in the immediately preceding sentence,
unless the holders of such Designated Senior Indebtedness or the Representative
of such holders have accelerated the maturity of such Designated Senior
Indebtedness, the Company must resume payments on the Notes after the end of
such Payment Blockage Period. The Notes shall not be subject to more than one
Payment Blockage Period in any consecutive 360-day period, irrespective of the
number of defaults with respect to Designated Senior Indebtedness during such
period.
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Upon any distribution of assets of the Company upon any dissolution, winding
up, total or partial liquidation or reorganization of or other similar
proceeding relating to the Company or its property, the holders of all Senior
Indebtedness of the Company will be entitled to receive payment in full (or have
such payment duly provided for) of all amounts due or to become due on or in
respect thereof before Holders of the Notes are entitled to receive any payment
on account of the principal of, premium, if any, and interest on the Notes or in
respect of the redemption price or Change of Control Purchase Price, and until
such Senior Indebtedness is paid in full, any payment or distribution to which
Holders of the Notes would be entitled but for the subordination provisions of
the Indenture will be made to holders of such Senior Indebtedness as their
interests may appear. If a distribution is made to Holders of the Notes that,
due to the subordination provisions, should not have been made to them, such
Holders of the Notes are required to hold it in trust for the holders of Senior
Indebtedness of the Company and pay it over to them as their interests may
appear.
No provision contained in the Indenture or the Notes will affect the
obligation of the Company, which is absolute and unconditional, to pay, when
due, principal of, premium, if any, and interest on the Notes. The subordination
provisions of the Indenture and the Notes do not prevent the occurrence of any
Event of Default under the Indenture or limit the rights of the Trustee or any
Holder to pursue any other rights or remedies with respect to the Notes.
The obligations of each Guarantor under its Subsidiary Guarantee will be
senior subordinated obligations. As such, the rights of Holders of the Notes to
receive payment by a Guarantor pursuant to its Subsidiary Guarantee will be
subordinated in right of payment to the rights of holders of Senior Indebtedness
of the Guarantors. The terms of the subordination provisions described above
with respect to the Company's obligations under the Notes apply equally to a
Guarantor and the obligations of such Guarantor under its Subsidiary Guarantee.
By reason of the subordination provisions contained in the Indenture, in the
event of bankruptcy, liquidation, insolvency or other similar proceedings,
creditors of the Company who are holders of Senior Indebtedness may recover
more, ratably, than the Holders of the Notes, and creditors of the Company who
are not holders of Senior Indebtedness may recover less, ratably, than holders
of Senior Indebtedness and may recover more, ratably, than the Holders of the
Notes.
Notwithstanding the foregoing, payment from the money or the proceeds of
U.S. Government Obligations held in any defeasance trust described under
"--Defeasance" below will not be contractually subordinated in right of payment
to any Senior Indebtedness or subject to the restrictions described herein.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants and other provisions of the Indenture. Reference is made to the
Indenture for the full definition of all terms as well as any other capitalized
term used herein for which no definition is provided.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person existing at the time
such Person merged with or into or became a Restricted Subsidiary and not
Incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any period, the aggregate net
income (or loss) of the Company and its consolidated Restricted Subsidiaries for
such period determined in conformity with GAAP; PROVIDED that the following
items shall be excluded in computing Adjusted Consolidated Net Income (without
duplication): (i) the net income of any Person that is not a Restricted
Subsidiary, except to the extent of the amount of dividends or other
distributions that are actually paid in cash to the Company or any of its
Restricted Subsidiaries by such Person during such period; (ii) solely for the
purposes of calculating the amount of Restricted Payments that may be made
pursuant to clause (C) of the first paragraph of the "Limitation on Restricted
Payments" covenant described below (and in such case,
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except to the extent includable pursuant to clause (i) above), the net income
(or loss) of any Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with the Company or any of its
Restricted Subsidiaries or all or substantially all of the property and assets
of such Person are acquired by the Company or any of its Restricted
Subsidiaries; (iii) the net income of any Restricted Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not permitted at such time by its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary; (iv) any net
after-tax gains or losses attributable to Asset Dispositions; (v) any net
after-tax extraordinary gains or extraordinary losses; and (vi) the cumulative
effect of a change in accounting principles.
"AFFILIATE" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"ALUMINUM BUSINESS" means the business of developing, manufacturing,
producing, marketing, transporting and selling aluminum, aluminum products and
electrical wiring products, including, without limitation, flexible conduit and
pre-wired armored cable, and any other business incidental thereto.
"ASSET ACQUISITION" means (i) an Investment by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries or (ii) an acquisition by the
Company or any of its Restricted Subsidiaries of the property and assets of any
Person other than the Company or any of its Restricted Subsidiaries that
constitute substantially all of a Line of Business of such Person.
"ASSET DISPOSITION" means any sale, lease, transfer or other disposition by
the Company or any Restricted Subsidiary (or series of related sales, leases,
transfers or dispositions), including any disposition by means of a merger,
consolidation or similar transaction (each referred to for the purposes of this
definition as a "disposition") of all or any of its property or assets
(including, without limitation, the Capital Stock of any Restricted Subsidiary);
provided that the following shall not be included in the definition of "Asset
Disposition": (i) any disposition by the Company or any Restricted Subsidiary of
any or all of its property or assets (upon voluntary liquidation or otherwise)
to the Company or a Wholly Owned Restricted Subsidiary; (ii) any disposition by
the Company or any Restricted Subsidiary in the ordinary course of business of
property or assets acquired and held for resale in the ordinary course of
business; (iii) any disposition of property or assets of the Company or any
Restricted Subsidiary pursuant to and in accordance with the provisions
described under "--Consolidation, Merger and Sale of Assets;" (iv) any
disposition by the Company or any Restricted Subsidiary of damaged, worn out or
other obsolete property or assets in the ordinary course of business; (v) any
transfer by the Company or any Restricted Subsidiary of any Capital Stock of any
Restricted Subsidiary to the Company or any Wholly Owned Restricted Subsidiary;
(vi) any disposition or series of related dispositions involving assets having a
fair market value of $1.0 million or less; provided, that such disposition or
series of related dispositions is effected at fair market value; and (vii) any
Permitted Receivables Financing.
"ATTRIBUTABLE INDEBTEDNESS" means, in respect of a Sale/Leaseback
Transaction, as of the time of determination, the present value (discounted at
the interest rate implicit in the Sale/Leaseback Transaction) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
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"AVERAGE LIFE" means, at any date of determination with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such Indebtedness and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
"BORROWING BASE" means, as of any date of determination, the sum of (i) 85%
of the aggregate unpaid portions of accounts receivable of the Company or any
Restricted Subsidiary (other than Receivables and Related Assets being sold
pursuant to a Permitted Receivables Financing) arising in the ordinary course of
business from the sale of products or the provision of services (after allowance
for doubtful accounts and net of any credits, rebates, offsets or other
adjustments) and (ii) 50% of the value (determined at the lower of cost or
market on a basis consistent with the consolidated financial statements of the
Company, after appropriate write-downs for obsolescence, quality problems and
the like) of inventories (including work in progress inventory) of the Company
or any Restricted Subsidiary held in the ordinary course of business.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or other ownership
interests, whether now outstanding or issued after the Issue Date, including,
without limitation, all common stock and Preferred Stock.
"CAPITALIZED LEASE" means, with respect to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person; and "Capitalized
Lease Obligation" means the rental obligations, as aforesaid, under such
Capitalized Lease.
"CHANGE OF CONTROL" means: (i) any "PERSON" or "GROUP" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable, except that for purposes of this clause (i) such person or group
shall be deemed to have "BENEFICIAL OWNERSHIP" of all shares that such person or
group has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), is or becomes the "BENEFICIAL OWNER" (as such
term is used in Rule 13d-3 promulgated pursuant to the Exchange Act), directly
or indirectly, of more than 35% of the aggregate voting power of the Voting
Stock of the Company; or (ii) individuals who on the Issue Date constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders of
the Company was approved by a majority of the directors then still in office who
were either directors on the Issue Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office.
"COMMISSION" means the Securities and Exchange Commission.
"CONSOLIDATED CURRENT LIABILITIES" means, as of any date of determination,
the aggregate amount of liabilities of the Company and its consolidated
Restricted Subsidiaries which may properly be classified as current liabilities
(including taxes accrued as estimated), on a consolidated basis, after
eliminating (i) all intercompany items between the Company and any Restricted
Subsidiary and (ii) all current maturities of long-term Indebtedness, all as
determined in conformity with GAAP.
"CONSOLIDATED EBITDA" means, for any period, the sum of (i) Adjusted
Consolidated Net Income, plus (ii) Consolidated Interest Expense plus (iii) the
following to the extent deducted in calculating Adjusted Consolidated Net
Income: (A) income taxes (other than income taxes (either positive or negative)
attributable to extraordinary and non-recurring gains or losses or sales of
assets), (B) depreciation expense, (C) amortization expense and (D) other
non-cash items reducing Adjusted Consolidated Net Income, net of non-cash items
increasing Adjusted Consolidated Net Income, less (iv) the amount of all cash
payments (other than any cash payment that individually or together with any
other related cash payments aggregate less than $1.0 million) made during such
period to the extent that such payments relate to non-cash charges that were
added back in determining Consolidated EBITDA for
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such period or for any prior period, all as determined on a consolidated basis
for the Company and its Restricted Subsidiaries in conformity with GAAP;
provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise
reduced in conformity with GAAP) by an amount equal to (A) the amount of the
Adjusted Consolidated Net Income attributable to such Subsidiary multiplied by
(B) the quotient of (1) the number of shares of outstanding common stock of such
Subsidiary not owned on the last day of such period by the Company or any
Restricted Subsidiary divided by (2) the total number of shares of outstanding
common stock of such Subsidiary on the last day of such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, on any Transaction Date,
the ratio of (i) the aggregate amount of Consolidated EBITDA for the then most
recent four fiscal quarters prior to such Transaction Date for which financial
information in respect thereof is available immediately prior to such
Transaction Date (the "Reference Period") to (ii) the aggregate Consolidated
Fixed Charges during such Reference Period. In making the foregoing calculation,
(A) pro forma effect shall be given to (1) any Indebtedness Incurred subsequent
to the end of the Reference Period and prior to the Transaction Date, (2) any
Indebtedness Incurred during such Reference Period to the extent such
Indebtedness is outstanding at the Transaction Date and (3) any Indebtedness to
be Incurred on the Transaction Date, in each case as if such Indebtedness had
been Incurred on the first day of such Reference Period and in each case after
giving pro forma effect to the application of the proceeds thereof as if such
application had occurred on such first day; (B) Consolidated Interest Expense
attributable to interest on any Indebtedness (whether existing or being
Incurred) computed on a pro forma basis and bearing a floating interest rate
shall be computed as if the rate in effect on the Transaction Date (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months) had been
the applicable rate for the entire Reference Period; (C) there shall be excluded
from Consolidated Fixed Charges any Consolidated Fixed Charges related to any
amount of Indebtedness, Redeemable Stock or obligations under leases that was
outstanding during such Reference Period or thereafter but that is not
outstanding or is to be repaid on the Transaction Date, except for Consolidated
Interest Expense accrued (as adjusted pursuant to clause (B) above) during such
Reference Period under a revolving credit or similar arrangement in effect on
the Transaction Date; (D) pro forma effect shall be given to Asset Dispositions
(other than an Asset Disposition involving assets having a fair market value of
less than $2.0 million) and Asset Acquisitions (including giving pro forma
effect to the application of proceeds of any Asset Disposition) that occur
during such Reference Period or thereafter and on or prior to the Transaction
Date as if they had occurred and such proceeds had been applied on the first day
of such Reference Period; and (E) pro forma effect shall be given to Asset
Dispositions (other than an Asset Disposition involving assets having a fair
market value of less than $2.0 million) and Asset Acquisitions (including giving
pro forma effect to the application of proceeds of any Asset Disposition) that
have been made by any Person that has become a Restricted Subsidiary or has been
merged with or into the Company or any Restricted Subsidiary during such
Reference Period or subsequent to such period and prior to the Transaction Date
and that would have constituted Asset Dispositions or Asset Acquisitions had
such transactions occurred when such Person was a Restricted Subsidiary as if
such Asset Dispositions or Asset Acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference Period; PROVIDED
that to the extent that clause (D) or (E) of this sentence requires that pro
forma effect be given to an Asset Acquisition or Asset Disposition, such pro
forma calculation shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date of the Person, or Line of Business of the Person,
that is acquired or disposed for which financial information is available.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum (without
duplication) of (i) Consolidated Interest Expense for such period and (ii) the
product of (x) cash and non-cash dividends (except dividends payable solely in
shares of Capital Stock that are not Redeemable Stock) paid, declared, accrued
or accumulated on any Redeemable Stock or other Preferred Stock and (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the sum of the currently effective combined Federal, state, local and
foreign tax rate of the Company and its Restricted Subsidiaries.
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"CONSOLIDATED INTEREST EXPENSE" means, for any period, the total amount of
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in total interest expense, and to the extent
incurred by the Company and its Restricted Subsidiaries, without duplication,
(i) interest expense attributable to Capitalized Lease Obligations paid, accrued
or scheduled to be paid or to be accrued during such period, (ii) amortization
of original issue discount on any Indebtedness, (iii) the interest portion of
any deferred payment obligation, calculated in accordance with the effective
interest method of accounting, (iv) all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing, (v) the interest-equivalent costs associated with Hedging
Obligations, (vi) interest paid on Indebtedness that is Guaranteed by the
Company or any of its Restricted Subsidiaries and (vii) interest-equivalent
costs associated with any Permitted Receivables Financing, whether accounted for
as interest expense or loss on the sale of Receivables and Related Assets;
EXCLUDING, HOWEVER, any amount of such interest of any Restricted Subsidiary if
the net income of such Restricted Subsidiary is excluded in the calculation of
Adjusted Consolidated Net Income pursuant to clause (iii) of the definition
thereof (but only in the same proportion as the net income of such Restricted
Subsidiary is excluded from the calculation of Adjusted Consolidated Net Income
pursuant to clause (iii) of the definition thereof).
"CONSOLIDATED NET TANGIBLE ASSETS" means, at any date of determination, the
total amount of assets (less accumulated depreciation and amortization,
allowances for doubtful receivables, other applicable reserves and other
properly deductible items) which would appear on a consolidated balance sheet of
the Company and its consolidated Restricted Subsidiaries, determined on a
consolidated basis in conformity with GAAP, and after giving effect to purchase
accounting and after deducting therefrom Consolidated Current Liabilities and,
to the extent otherwise included, the amounts of: (i) minority interests in
consolidated Subsidiaries held by Persons other than the Company or a Restricted
Subsidiary; (ii) excess of cost over fair value of assets of businesses
acquired, as determined in good faith by the Board of Directors; (iii) any
revaluation or other write-up in book value of assets subsequent to the Issue
Date as a result of a change in the method of valuation in conformity with GAAP;
(iv) unamortized debt discount and expenses and other unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names, copyrights,
licenses, organization or developmental expenses and other intangible items; (v)
treasury stock; (vi) cash set apart and held in a sinking or other analogous
fund established for the purpose of redemption or other retirement of Capital
Stock to the extent such obligation is not reflected in Consolidated Current
Liabilities; and (vii) Investments in and assets of Unrestricted Subsidiaries.
"CURRENCY AGREEMENT" means, with respect to any Person, any foreign exchange
contract, currency swap agreement or other similar agreement to which such
Person is a party or a beneficiary.
"DEFAULT" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"DESIGNATED SENIOR INDEBTEDNESS" means, with respect to any Person, (i) any
Indebtedness under the New Bank Credit Facility (including all Obligations under
the New Bank Credit Facility) and (ii) any other Senior Indebtedness which, at
the date of determination, has an aggregate principal amount of, or under which,
at the date of determination, the holders thereof are committed to lend up to at
least $25.0 million and is specifically designated as "Designated Senior
Indebtedness" for purposes of the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPIRATION DATE" has the meaning specified in the definition of Offer to
Purchase.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect on the date of determination, including, without
limitation, those 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 approved by a significant segment
of the accounting profession.
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"GUARANTEE" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); PROVIDED that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations of
such Person pursuant to any Materials Hedging Contract, Interest Rate Agreement
or Currency Agreement.
"IMMATERIAL SUBSIDIARY" means, at the date of determination, any Restricted
Subsidiary that is not a Significant Subsidiary.
"INCUR" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness;
PROVIDED that (i) the Indebtedness of a Person existing at the time such Person
became a Subsidiary or a Restricted Subsidiary, as the case may be, shall be
deemed to have been Incurred by such Subsidiary or Restricted Subsidiary, as the
case may be, and (ii) that neither the accrual of interest nor the accretion of
original issue discount shall be considered an Incurrence of Indebtedness.
"INDEBTEDNESS" means, with respect to any Person at any date of
determination (without duplication), whether or not Incurred at the date of the
Indenture (i) all indebtedness of such Person for borrowed money, (ii) all
indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect of bankers'
acceptances, letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business), (v) all obligations of such Person as lessee under
Capitalized Leases, (vi) all indebtedness of other Persons secured by a Lien on
any asset of the first-mentioned Person, whether or not such Indebtedness is
assumed by the first-mentioned Person; PROVIDED that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of other Persons to the extent Guaranteed by such Person, (viii) to
the extent not otherwise included in this definition, Hedging Obligations and
(ix) the maximum fixed redemption or repurchase price of any Redeemable Stock
issued by such Person; PROVIDED that up to $7.0 million payable to Lockheed
Martin pursuant to agreements relating to the reimbursement for certain
environmental costs (as in effect on the Issue Date) shall not be included in
the definition of "Indebtedness." The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations
described above, the maximum liability upon the occurrence of the contingency
giving rise to the obligation; PROVIDED that the amount outstanding at any time
of any Indebtedness issued with original issue discount is the face amount of
such Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement, interest
rate cap agreement or other financial agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
interest rates.
"INVESTMENT" means any direct or indirect advance, loan or other extension
of credit (other than advances to customers in the ordinary course of business
that are, in conformity with GAAP, recorded as
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accounts receivable on the balance sheet of the lender) 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 of Capital Stock, bonds, notes, debentures or other similar
instruments issued by any other Person. For purposes of the definition of
"Unrestricted Subsidiary" and the "Limitation on Restricted Payments" covenant
described below, "Investment" shall include (i) the fair market value of the
assets (net of liabilities) of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary and shall exclude
the fair market value of the assets (net of liabilities) of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (ii) any property transferred to or from any Person
shall be valued at its fair market value at the time of such transfer, in each
case as determined by the Board of Directors in good faith.
"INVESTMENT GRADE RATING" means that both S&P and Moody's have assigned and
published a rating in one of such agency's four highest generic rating
categories that signifies investment grade (i.e, BBB- (or the equivalent) or
higher by S&P and Baa3 (or the equivalent) or higher by Moody's); PROVIDED, that
in the event S&P or Moody's is no longer in existence or issuing ratings, for
purposes of determining whether the Notes are rated "Investment Grade", such
organization may be replaced by a nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act) designated by the
Company with notice to the Trustee and the provisions of this definition shall
apply to the rating issued by such replacement rating agency.
"ISSUE DATE" means September 20, 1996.
"LIEN" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof, any sale with recourse
against the seller or any Affiliate of the seller, any option or other agreement
to sell, or any filing of or any agreement to give any security interest).
"LINE OF BUSINESS" means, with respect to any Person, a "business" as
defined in Rule 11-01 under Regulation S-X promulgated by the Commission.
"MATERIALS HEDGING CONTRACT" means any metals or commodities purchase or
hedging agreement or other agreement or arrangement, in each case, that is
designed to protect against exposures to price risk in the aluminum market or in
commodities used in the Aluminum Business.
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
"NET CASH PROCEEDS" means, with respect to any Asset Disposition, the
proceeds of such Asset Disposition in the form of cash or cash equivalents,
including payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary) and proceeds from the conversion of other property received when
converted to cash or cash equivalents, net of (i) brokerage commissions and
other fees and expenses (including, without limitation, fees and expenses of
counsel and investment bankers) related to such Asset Disposition, (ii)
provisions for all taxes (whether or not such taxes will actually be paid or are
payable) as a result of such Asset Disposition without regard to the
consolidated results of operations of the Company and its Restricted
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Disposition that either
(A) is secured by a Lien on the property or assets sold or (B) is required to be
paid as a result of such sale and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary as a reserve against any liabilities
associated with such Asset Disposition, 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 Disposition, all as determined in conformity with
GAAP.
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"NEW BANK CREDIT FACILITY" means the Credit Agreement dated on or about the
Issue Date among the Company, certain subsidiaries of the Company, the Lenders
party thereto and NatWest, as agent for such Lenders, together with any related
documents thereto (including, without limitation, any security documents and
guarantee agreements), in each case as such agreements may be amended,
supplemented, extended, renewed, restated, replaced, refinanced or modified from
time to time, including, without limitation, by adding additional parties
thereto or increasing the commitment thereunder; provided that there may not be
more than one New Bank Credit Facility at any one time, which shall be
designated by the Company.
"OBLIGATIONS" means all obligations (whether in existence on the Issue Date
or arising thereafter) for, or Guaranteeing the payment of, principal, premium,
interest (including, without limitation, all interest accrued or accruing after
the commencement of any Reorganization of any Person obligated with respect
thereto in accordance with and at the contract rate (including, without
limitation, any rate applicable upon default) specified in the agreement or
instrument creating, evidencing or governing any Indebtedness, whether or not,
pursuant to applicable law or otherwise, the claim for such interest is allowed
as a claim in such case or proceeding), penalties, fees, indemnifications,
reimbursements and other amounts in respect of any Indebtedness under the New
Bank Credit Facility.
"OFFER" has the meaning specified in the definition of Offer to Purchase.
"OFFER TO PURCHASE" means a written offer (the "Offer") sent by the Company
by first class mail, postage prepaid, to each Holder at its address appearing in
the Security Register on the date of the Offer offering to purchase up to the
principal amount of Notes specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to the Indenture). Unless
otherwise required by applicable law, the Offer shall specify (i) the expiration
date (the "Expiration Date") of the Offer to Purchase which shall be, subject to
any contrary requirements of applicable law, the date 20 Business Days from the
date such Offer is mailed, at which time the Company will accept for payment all
Notes or portions thereof properly tendered pursuant to the Offer and (ii) a
settlement date (the "Purchase Date") for the payment of such purchase price
within three Business Days after the Expiration Date. The Company shall notify
the Trustee at least 15 Business Days (or such shorter period as is acceptable
to the Trustee) prior to the mailing of the Offer of the Company's obligation to
make an Offer to Purchase, and the Offer shall be mailed by the Company or, at
the Company's request, by the Trustee in the name and at the expense of the
Company. The Offer shall contain or incorporate by reference information
concerning the business of the Company and its Subsidiaries which the Company in
good faith believes will assist such Holders to make an informed decision with
respect to the Offer to Purchase, including a brief description of the events
requiring the Company to make the Offer to Purchase, and any other information
required by applicable law to be included therein. The Offer shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Offer to Purchase. The Offer shall also state: (A) the covenant
of the Indenture pursuant to which the Offer to Purchase is being made; (B) the
Expiration Date and the Purchase Date; (C) the aggregate principal amount of the
outstanding Notes offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which such amount has
been determined pursuant to the covenant of the Indenture requiring the Offer to
Purchase) (the "Purchase Amount"); (D) the purchase price to be paid by the
Company for each $1,000 aggregate principal amount of Notes accepted for payment
(as specified pursuant to the Indenture) (the "Purchase Price"); (E) that the
Holder may tender all or any portion of the Notes registered in the name of such
Holder and that any portion of a Note tendered must be tendered in an integral
multiple of $1,000 principal amount; (F) the place or places where Notes are to
be surrendered for tender pursuant to the Offer to Purchase; (G) that interest
on any Note not tendered or tendered but not purchased by the Company pursuant
to the Offer to Purchase will continue to accrue; (H) that on the Purchase Date
the Purchase Price will become due and payable upon each Note being accepted for
payment pursuant to the Offer to Purchase and that interest thereon shall cease
to accrue on and after the Purchase Date; (I) that each Holder electing to
tender a Note pursuant to the Offer to Purchase will be required to surrender
such
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Note at the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Note being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing); (J) that Holders
will be entitled to withdraw all or any portion of Notes tendered if the Company
(or its Paying Agent) receives, not later than the close of business on the
Expiration Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder tendered, the
certificate number of the Note the Holder tendered and a statement that such
Holder is withdrawing all or a portion of its tender; (K) that (1) if Notes in
an aggregate principal amount less than or equal to the Purchase Amount are duly
tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall
purchase all such Notes and (2) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant to the
Offer to Purchase, the Company shall purchase Notes having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with such
adjustments as may be deemed appropriate so that only Notes in denominations of
$1,000 or integral multiples thereof shall be purchased); and (L) that in the
case of any Holder whose Note is purchased only in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Note without a service charge, a new Note or Notes, with the Subsidiary
Guarantees endorsed thereon executed by the Guarantors, of any authorized
denomination as requested by such Holder, in an aggregate principal amount equal
to and in exchange for the unpurchased portion of the principal of the Note so
tendered.
"PERMITTED BUSINESS VENTURE" means an Investment in a Person (other than a
Restricted Subsidiary) for the principal purpose of securing materials or
commodities related to the production or processing of the Company's or any
Restricted Subsidiary's products in the Aluminum Business.
"PERMITTED LIENS" means, with respect to any Person, (i) Liens existing on
the Issue Date, (ii) pledges or deposits by such Person under worker's
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or deposits
to secure public or statutory obligations of such Person or deposits of cash or
United States government bonds to secure surety or appeal bonds to which such
Person is a party, or deposits as security for contested taxes or import duties
or for the payment of rent, in each case Incurred in the ordinary course of
business, (iii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings or other Liens arising out of judgments or
awards against such Person with respect to which such Person shall then be
proceeding with an appeal or other proceedings for review, (iv) Liens for
property taxes not yet subject to penalties for non-payment or which are being
contested in good faith and by appropriate proceedings, (v) Liens in favor of
issuers of surety bonds or letters of credit issued pursuant to the request of
and for the account of such Person in the ordinary course of its business;
PROVIDED, that such letters of credit do not constitute Indebtedness, (vi) minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate materially impair
their use in the operation of the business of such Person, (vii) Liens securing
Indebtedness Incurred to finance the construction, purchase or lease of, or
repairs, improvements or additions to, inventory or other property of such
Person; PROVIDED that the Lien may not extend to any other property owned by
such Person or any of its Subsidiaries at the time the Lien is Incurred, and the
Indebtedness secured by the Lien may not be Incurred more than 365 days after
the later of the acquisition, completion of construction, repair, improvement,
addition or commencement of full operation of the property subject to the Lien,
(viii) Liens securing Indebtedness (including all Obligations) under the New
Bank Credit Facility, (ix) Liens on property or shares of Capital Stock of
another Person at the time such other Person becomes a Subsidiary of such
Person; PROVIDED, that such Lien may not extend to any other property owned by
such Person or any of its Subsidiaries, (x) Liens on property at the time
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such Person or any of its Subsidiaries acquires the property, including any
acquisition by means of an exchange, merger or consolidation with or into such
Person or a Subsidiary of such Person; provided that such Liens may not extend
to any other property owned by such Person or any of its Subsidiaries, (xi)
Liens securing Indebtedness or other obligations of a Subsidiary of such Person
owing to such Person or a Wholly Owned Subsidiary of such Person or, in the case
of the Company, to a Wholly Owned Subsidiary), (xii) Liens securing Hedging
Obligations so long as such Hedging Obligations relate to Indebtedness that is,
and is permitted to be under the Indenture, secured by a Lien on the same
property securing such Hedging Obligations, (xiii) Liens on Receivables and
Related Assets securing Indebtedness or otherwise permitted to be Incurred, in
each case, in connection with a Permitted Receivables Facility, (xiv) Liens
arising in connection with a Sale/Leaseback Transaction permitted by the
provisions (whether or not then in effect) described under "--Certain Positive
Credit Events," (xv) Liens securing Indebtedness represented by any industrial
revenue bonds, pollution control bonds or other tax exempt financing; PROVIDED,
that the aggregate amount of any Indebtedness to which such Liens relate at any
one time outstanding shall not exceed $10 million, (xvi) other Liens securing
Indebtedness (including Attributable Indebtedness) in an aggregate amount not
exceeding 10% of Consolidated Net Tangible Assets, and (xvii) extensions,
renewals or replacements of any Liens referred to in clauses (i) through (xvi).
"PERMITTED RECEIVABLES FINANCING" means a transaction or series of
transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Company or any Restricted Subsidiary and finances such Receivables and Related
Assets through the issuance of indebtedness or equity interests or through the
sale of the Receivables and Related Assets or a fractional undivided interest in
the Receivables and Related Assets; provided that (i) the Board of Directors
shall have determined in good faith that such Permitted Receivables Financing is
economically fair and reasonable to the Company and the Securitization
Subsidiary, (ii) all sales of Receivables and Related Assets to or by the
Securitization Subsidiary are made at fair market value (as determined in good
faith by the Board of Directors), (iii) the financing terms, covenants,
termination events and other provisions thereof shall be market terms (as
determined in good faith by the Board of Directors), (iv) no portion of the
Indebtedness of a Securitization Subsidiary is Guaranteed by or is recourse to
the Company or any Restricted Subsidiary (other than recourse for customary
representations, warranties, covenants and indemnities, none of which shall
relate to the collectibility of the Receivables and Related Assets) and (v)
neither the Company nor any Subsidiary has any obligation to maintain or
preserve the Securitization Subsidiary's financial condition.
"PREFERRED STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference stock, whether
now outstanding or hereafter issued, including, without limitation, all series
and classes of such preferred or preference stock.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering of
common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"PURCHASE AMOUNT" has the meaning specified in the definition of Offer to
Purchase.
"PURCHASE DATE" has the meaning specified in the definition of Offer to
Purchase.
"PURCHASE PRICE" has the meaning specified in the definition of Offer to
Purchase.
"RECEIVABLES AND RELATED ASSETS" means accounts receivable and instruments,
chattel paper, obligations, general intangibles and other similar assets, in
each case, relating to such receivables, including interests in merchandise or
goods, the sale or lease of which gave rise to such receivable, related
contractual rights, guarantees, insurance proceeds, collections, other related
assets and proceeds of all of the foregoing.
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"REDEEMABLE STOCK" means any class or series of Capital Stock of any Person
that by its terms or otherwise is (i) required to be redeemed prior to the
Stated Maturity of the Notes, (ii) redeemable at the option of the holder of
such class or series of Capital Stock at any time prior to the Stated Maturity
of the Notes or (iii) convertible into or exchangeable for Capital Stock
referred to in clause (i) or (ii) above (other than Capital Stock convertible or
exchangeable solely at the option of the Company) or Indebtedness having a
scheduled maturity prior to the Stated Maturity of the Notes; PROVIDED that any
Capital Stock that would not constitute Redeemable Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the Stated Maturity of the Notes shall not
constitute Redeemable Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in the "Limitation on Asset
Sales" covenant and under "--Repurchase of Notes upon a Change of Control"
described below and such Capital Stock specifically provides that such Person
will not repurchase or redeem any such stock pursuant to such provisions prior
to the Company's repurchase of such Notes as are required to be repurchased
pursuant to the "Limitation on Asset Sales" covenant and under "--Repurchase of
Notes upon a Change of Control" described below. Notwithstanding the foregoing,
Capital Stock shall not be deemed to be Redeemable Stock if it may only be so
redeemed in exchange for Capital Stock that is not Redeemable Stock.
"REORGANIZATION" means, with respect to any Person, any reorganization,
bankruptcy, insolvency, receivership or other similar statutory or common law
proceedings or arrangements, including without limitation any proceeding under
Title 11, United States Code or any similar federal, state or foreign law for
the relief of debtors, involving such Person or the readjustment of such
Person's liabilities or any assignment for the benefit of creditors or any
marshaling of the assets or liabilities of such Person.
"REPRESENTATIVE" means any trustee, agent or representative for an issue of
Senior Indebtedness.
"RESTRICTED INVESTMENT" means any Investment by the Company or any
Restricted Subsidiary in any Person other than (i) an Investment in a Restricted
Subsidiary or in any Person that, as a result of such Investment, becomes a
Restricted Subsidiary, (ii) cash, (iii) U.S. Government Obligations, (iv) time
deposits and certificates of deposit or Eurodollar deposits due within one year
of any commercial bank whose outstanding senior long-term debt securities are
rated either A- or higher by S&P or A3 or higher by Moody's, (v) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (iii) of this paragraph with any bank meeting the
qualifications specified in clause (iv) of this paragraph, (vi) commercial paper
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody's, maturing within one year after the date of
acquisition, (vii) an Investment in a money market mutual fund substantially all
of the assets of which are comprised of securities of the types described in
clauses (iii) through (vi) of this paragraph, (viii) securities due within six
months or less from the date of acquisition issued or fully and unconditionally
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or Moody's, (ix) loans or advances made to employees of the
Company or any Restricted Subsidiary in the ordinary course of business and in
furtherance of the Company's or such Restricted Subsidiary's business in an
aggregate amount not to exceed $4.0 million at any time outstanding, (x) any
Investment in a Permitted Business Venture; provided, that (A) as a result of
such Investment the Company or such Restricted Subsidiary, as the case may be,
will be entitled to a share of the production of, or services provided by, such
Permitted Business Venture at least approximately proportionate to its ownership
interest in such Permitted Business Venture and (B) immediately after giving
effect to such Investment, the aggregate fair market value (fair market value to
be determined as of the date of such exchange in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) of all such Investments after the Issue Date shall not exceed 10% of
Consolidated Net Tangible Assets, (xi) in the event the Company or any
Restricted Subsidiary maintains any unfunded deferred compensation plan (within
the meaning of Title I of the Employee Retirement
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Income Security Act of 1974, as amended), to the extent benefits under such plan
are defined by reference to specific investments, whether at the participant's
or the beneficiaries' election or otherwise, any Investment in such a specific
investment, and (xii) other Investments that do not in the aggregate exceed
$15.0 million at any time outstanding.
"RESTRICTED SUBSIDIARY" means any Subsidiary other than an Unrestricted
Subsidiary.
"REVOLVING LOAN FACILITY" means the revolving credit facility provided under
the New Bank Credit Facility.
"SALE/LEASEBACK TRANSACTION" means an arrangement with any Person providing
for the leasing by the Company or any Restricted Subsidiary of any property or
assets (other than any such arrangement involving a lease for a term, including
renewal rights, for not more than three years) whereby such property or assets
have been or are to be sold or transferred by the Company or any Restricted
Subsidiary to such Person.
"SECURED INDEBTEDNESS" means any Indebtedness of the Company secured by a
Lien.
"SECURITIZATION SUBSIDIARY" means a Wholly Owned Restricted Subsidiary of
the Company, which is established for the limited purpose of acquiring and
financing Receivables and Related Assets and engaging in activities ancillary
thereto.
"SENIOR INDEBTEDNESS" means, with respect to any Person, all principal of
(premium, if any) and interest (including interest accruing on or after the
filing of any petition in bankruptcy or for Reorganization relating to such
Person whether or not a claim for post filing interest is allowed in such
proceedings) with respect to all Indebtedness of such Person (including with
respect to the New Bank Credit Facility, all Obligations of such Person),
whether outstanding on the Issue Date or thereafter Incurred; PROVIDED that
Senior Indebtedness shall not include (i) any Indebtedness of such Person that,
by its terms or the terms of the instrument creating or evidencing such
Indebtedness, is PARI PASSU with or expressly subordinate in right of payment to
the Notes or, in the case of a Guarantor, its Subsidiary Guarantee, (ii) any
obligation of such Person to any Subsidiary of such Person or, in the case of a
Guarantor, to the Company or any other Subsidiary of the Company, (iii) any
liability for Federal, state, local or other taxes owed or owing by such Person,
(iv) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities), (v) any Indebtedness of such Person (and any
accrued and unpaid interest in respect thereof) which is subordinate or junior
in any respect to any other Indebtedness or other obligation of such Person,
(vi) that portion of any Indebtedness which at the time of Incurrence is
Incurred in violation of the Indenture, or (vii) Redeemable Stock of such
Person.
"SENIOR SUBORDINATED INDEBTEDNESS" means (i) with respect to the Company,
the Notes and any other Indebtedness of the Company that specifically provides
that such Indebtedness is to rank PARI PASSU with the Notes in right of payment
and is not subordinated by its terms in right of payment to any Indebtedness or
other obligation of the Company which is not Senior Indebtedness and (ii) with
respect to any Guarantor, the Subsidiary Guarantee of such Guarantor and any
other Indebtedness of such Guarantor that specifically provides that such
Indebtedness is to rank PARI PASSU with such Subsidiary Guarantee in right of
payment and is not subordinated by its terms in right of payment to any
Indebtedness or other Obligation of such Guarantor which is not Senior
Indebtedness.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any Restricted
Subsidiary that, together with its Subsidiaries, (i) accounted for more than 10%
of the consolidated revenues of the Company and its Restricted Subsidiaries for
the then most recent four fiscal quarters prior to such date of determination
for which financial information is available at such date of determination or
(ii) was the owner of more than 10% of the consolidated assets of the Company
and its Restricted Subsidiaries as of such date of determination.
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"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"STATED MATURITY" means (i) with respect to any debt security or other debt
instrument, the date specified in such debt security as the fixed date on which
the final installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of or interest on
any debt security or other debt instrument, the date specified in such debt
security as the fixed date on which such installment is due and payable.
"STOCKHOLDER PROTECTION RIGHTS AGREEMENT" means the Company's Stockholder
Protection Rights Agreement, dated as of March 6, 1996, as in effect on the
Issue Date and as it may be amended, extended, renewed or replaced from time to
time; PROVIDED that no such amendment, extension, renewal or replacement shall
increase any obligation thereunder that may be a Restricted Payment, and "STOCK
PURCHASE RIGHTS" means the rights issued under such Stockholder Protection
Rights Agreement.
"SUBORDINATED INDEBTEDNESS" means, with respect to any Person, any
Indebtedness (whether outstanding on the Issue Date or thereafter Incurred)
which is subordinated or junior in right of payment, in the case of Indebtedness
of the Company, to the Notes pursuant to a written agreement to that effect and,
in the case of Indebtedness of any Guarantor, to the Guarantees pursuant to a
written agreement to that effect.
"SUBSIDIARY" means, with respect to any Person, any corporation, association
or other business entity of which more than 50% of the outstanding Voting Stock
is owned, directly or indirectly, by (i) such Person, (ii) such Person and one
or more other Subsidiaries of such Person or (iii) one or more Subsidiaries of
such Person. Unless otherwise specified, "Subsidiary" means a Subsidiary of the
Company.
"TERM LOAN FACILITY" means the term loan facility provided under the New
Bank Credit Facility.
"TRANSACTION DATE" means, with respect to the Incurrence of any Indebtedness
by the Company or any of its Restricted Subsidiaries, the date such Indebtedness
is to be Incurred and, with respect to any Restricted Payment, the date such
Restricted Payment is to be made.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Company in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Restricted Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Redeemable Stock of the Company or any Capital Stock of any Restricted
Subsidiary, or owns or holds any Lien on any property of the Company or any
Restricted Subsidiary; PROVIDED that (1) such designation would be permitted
under the "Limitation on Restricted Payments" covenant described below, (2) no
portion of the Indebtedness or any other obligation (contingent or otherwise) of
such Subsidiary (A) is Guaranteed by the Company or any Restricted Subsidiary,
(B) is recourse to the Company or any Restricted Subsidiary or (C) subjects any
property or asset of the Company or any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, and (3) no
default or event of default with respect to any Indebtedness of such Subsidiary
would permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary to declare such Indebtedness of the Company or any Restricted
Subsidiary due and payable prior to its Stated Maturity. The Board of Directors
of the Company may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that immediately after giving effect to such designation
(x) the Company could Incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) and (y) no Default or Event of Default shall have
occurred and be continuing. Any such designation by the Board of Directors of
the Company 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.
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"U.S. GOVERNMENT OBLIGATION" means (i) any security which is (x) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (y) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America and (ii) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in clause (i) above and held by such
bank for the account of the holder of such depositary receipt, or with respect
to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that for purposes of
defeasance, in the case of any U.S. Government obligation specified in clause
(i) above such obligation is not callable or redeemable at the option of the
issuer thereof and in the case of any depositary receipt referred to in clause
(ii) above (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.
"VOTING STOCK" means, with respect to any Person, Capital Stock of any class
or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"WHOLLY OWNED" means, with respect to any Subsidiary of any Person, such
Subsidiary if all of the outstanding Capital Stock or other similar equity
ownership interests (other than Preferred Stock) in such Subsidiary (other than
any director's qualifying shares or Investments by foreign nationals mandated by
applicable law) is owned directly or indirectly by such Person.
CERTAIN COVENANTS
The Indenture contains covenants including, among others, those set forth
below. If an Investment Grade Rating is assigned to the Notes, then, at the
election of the Board of Directors of the Company, which election shall be
evidenced by a Board Resolution, the Company shall be released from its
obligations under the covenants described below under "--Limitation on
Indebtedness," "--Limitation on Restricted Payments," "--Limitation on Dividend
and other Payment Restrictions Affecting Restricted Subsidiaries," "--Limitation
on the Issuance of Capital Stock of Restricted Subsidiaries" and "--Limitation
on Asset Sales" and clause (iii) under "Consolidation, Merger and Sale of
Assets," and the occurrence of any event specified in clause (iii) under
"--Events of Default," with respect to such covenants and such clause, shall be
deemed not to result in an Event of Default. See "--Certain Positive Credit
Events."
LIMITATION ON INDEBTEDNESS
The Company will not, and will not permit any of its Restricted Subsidiaries
to, Incur any Indebtedness (other than Permitted Indebtedness); PROVIDED that
the Company may Incur Indebtedness if, on the date of such Incurrence, after
giving effect to the Incurrence of such Indebtedness and the receipt and
application of the proceeds therefrom, the Consolidated Fixed Charge Coverage
Ratio exceeds 2.25:1 if such Indebtedness is Incurred on or prior to October 1,
1999 and 2.5:1 if such Indebtedness is Incurred thereafter.
Notwithstanding the foregoing, the Company and, to the extent provided
below, any Restricted Subsidiary may Incur the following Indebtedness (each, a
"Permitted Indebtedness"):
(i) Indebtedness of the Company and/or any Restricted Subsidiary
pursuant to the New Bank Credit Facility in an aggregate principal amount at
any time outstanding not to exceed (A) $100.0 million under the Term Loan
Facility (less the amount thereof which has been permanently repaid as
PROVIDED under the "Limitation on Asset Sales" covenant described below) and
(B) the greater of (1) $225.0 million (less the amount of net proceeds which
have been received in connection with a
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Permitted Receivables Financing; provided that, such reduction shall apply
only for so long as a Permitted Receivables Financing is in effect) and (2)
the aggregate Borrowing Base under the Revolving Loan Facility;
(ii) Indebtedness of the Company or any Restricted Subsidiary to the
Company or any Wholly Owned Restricted Subsidiary as long as such
Indebtedness continues to be owed to the Company or any Wholly Owned
Restricted Subsidiary;
(iii) Indebtedness of the Company pursuant to the Notes and Indebtedness
of any Guarantor pursuant to a Subsidiary Guarantee of the Notes;
(iv) Indebtedness ("Permitted Refinancing Indebtedness") issued in
exchange for, or the net proceeds of which are used to refinance or refund,
then outstanding Indebtedness (Incurred under the first paragraph of this
description of the "Limitation on Indebtedness" covenant or under clause
(iii), (vi), (vii), (viii) or (xii) of this paragraph), and any refinancings
thereof in an amount not to exceed the amount so refinanced or refunded
(plus premiums, accrued interest, fees and expenses); PROVIDED that
Indebtedness the proceeds of which are used to refinance or refund the Notes
or Indebtedness that is PARI PASSU with, or subordinated in right of payment
to, the Notes shall only be permitted under this clause (iv) if (A) in case
the Notes are refinanced in part or the Indebtedness to be refinanced is
PARI PASSU with the Notes, such new Indebtedness, by its terms or by the
terms of any agreement or instrument pursuant to which such new Indebtedness
is outstanding, is expressly made PARI PASSU with, or subordinate in right
of payment to, the remaining Notes, (B) in case the Indebtedness to be
refinanced is subordinated in right of payment to the Notes, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is outstanding, is expressly made
subordinate in right of payment to the Notes at least to the extent that the
Indebtedness to be refinanced is subordinated to the Notes and (C) such new
Indebtedness, determined as of the date of Incurrence of such new
Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of such new
Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded; and PROVIDED FURTHER that in no
event may Indebtedness of the Company be refinanced pursuant to this clause
(iv) by means of any Indebtedness of any Restricted Subsidiary;
(v) Indebtedness of the Company or any Restricted Subsidiary in respect
of performance bonds, letters of credit, bankers' acceptances and surety or
appeal bonds issued in the ordinary course of business;
(vi) Acquired Indebtedness of any Restricted Subsidiary; PROVIDED that,
with respect to this clause (vi), after giving effect to the Incurrence
thereof, the Company could Incur at least $1.00 of Indebtedness (other than
Permitted Indebtedness);
(vii) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Issue Date (other than Indebtedness described in clause
(i), (ii) or (iii) of this paragraph);
(viii) Indebtedness of the Company or any Restricted Subsidiary
represented by Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case Incurred for this purpose of financing not
more than 80% of the purchase price or cost of construction or improvement
of property used in an Aluminum Business or Incurred to refinance any such
purchase price or cost of construction or improvement, in each case Incurred
no later than 365 days after the date of such acquisition or the date of
completion of such construction or improvements; PROVIDED that the aggregate
principal amount of any Indebtedness Incurred pursuant to this clause (viii)
and any refinancing thereof at any one time outstanding shall not exceed
$40.0 million;
(ix) Indebtedness of a Securitization Subsidiary pursuant to a Permitted
Receivables Financing; PROVIDED that after giving effect to the Incurrence
thereof, the Company could Incur at least $1.00 of
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Indebtedness under the first paragraph or clause (i) of this second
paragraph of this description of the "Limitation on Indebtedness" covenant;
(x) Indebtedness of the Company or any Restricted Subsidiary under
Materials Hedging Contracts entered into in the ordinary course of business
for the purpose of limiting risks to the Company or any Restricted
Subsidiary of changes in prices for aluminum or commodities relating to the
Aluminum Business;
(xi) Indebtedness consisting of Interest Rate Agreements directly
related to Indebtedness permitted to be Incurred by the Company or any
Restricted Subsidiary pursuant to the Indenture or consisting of Currency
Agreements entered into in the ordinary course of business;
(xii) Indebtedness of the Company or any Restricted Subsidiary
represented by any industrial revenue bonds, pollution control bonds or
other tax exempt financing; provided, that the aggregate amount of any
Indebtedness Incurred pursuant to this clause (xii) and any refinancing
thereof at any one time outstanding shall not exceed $10.0 million;
(xiii) Guarantees by any Restricted Subsidiary of Indebtedness Incurred
by the Company in compliance with the provisions set forth under the first
paragraph or clause (xiv) of this paragraph of this description of the
"Limitation on Indebtedness" covenant may be guaranteed pursuant to this
clause (xiii);
and (xiv) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount at any time outstanding not to exceed $40.0
million.
For purposes of determining compliance with the "Limitation on Indebtedness"
covenant described in the two preceding paragraphs, (i) in the event that an
item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the clauses of the preceding paragraph, the Company,
in its sole discretion, shall classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of such
clauses, (ii) an item of Indebtedness may be divided and classified in more than
one of the types of Indebtedness described above and (iii) the amount of
Indebtedness issued at a price that is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
conformity with GAAP.
Notwithstanding the foregoing, the Company will not, and will not permit any
Guarantor to, Incur (i) any Indebtedness if such Indebtedness is subordinate or
junior in ranking in any respect to any Senior Indebtedness of the Company or
such Guarantor, as the case may be, unless such Indebtedness is Senior
Subordinated Indebtedness of the Company or such Guarantor, as the case may be,
or is expressly subordinate in right of payment to Senior Subordinated
Indebtedness of the Company or such Guarantor, as the case may be, or (ii) any
Secured Indebtedness that is not Senior Indebtedness unless contemporaneously
therewith effective provision is made to secure the Notes or the Guarantees, as
the case may be, equally and ratably with such Secured Indebtedness for so long
as such Secured Indebtedness is secured by a Lien.
LIMITATION ON RESTRICTED PAYMENTS
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, after the Issue Date (such payments and other actions
described in clauses (i) through (iv) being collectively referred to as
"Restricted Payments"): (i) declare or pay any dividend or make any distribution
on its Capital Stock (other than dividends or distributions payable solely in
shares of its or such Restricted Subsidiary's Capital Stock (other than
Redeemable Stock) or in options, warrants or other rights to acquire such shares
of Capital Stock) held by Persons other than the Company or any of its Wholly
Owned Restricted Subsidiaries; (ii) purchase, redeem, retire or otherwise
acquire for value any shares of Capital Stock of the Company or any Restricted
Subsidiary (including options, warrants or other rights to acquire such shares
of Capital Stock) held by Persons other than the Company or any of its Wholly
Owned
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Restricted Subsidiaries; (iii) make any voluntary or optional principal payment,
or voluntary or optional redemption, repurchase, defeasance or other acquisition
or retirement for value of any Subordinated Indebtedness; or (iv) make any
Investment that is a Restricted Investment; if, at the time of, and after giving
effect to, the proposed Restricted Payment: (A) a Default or Event of Default
shall have occurred and be continuing, (B) the Company could not Incur at least
$1.00 of Indebtedness (other than Permitted Indebtedness) or (C) the aggregate
amount (without duplication) expended for all Restricted Payments (the amount so
expended, if other than in cash, to be determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive and evidenced
by a Board Resolution) after the Issue Date shall exceed the sum (without
duplication) of (1) 50% of the aggregate amount of the Adjusted Consolidated Net
Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of
such amount) (determined by excluding income created by transfers of assets
received by the Company or a Restricted Subsidiary from an Unrestricted
Subsidiary) accrued on a cumulative basis during the period (taken as one
accounting period) beginning on October 1, 1996 and ending on the last day of
the Company's last fiscal quarter ended before the Transaction Date plus (2) the
aggregate net proceeds (including the fair market value of non-cash proceeds as
determined in good faith by the Board of Directors of the Company) received by
the Company from the issuance and sale permitted by the Indenture of its Capital
Stock (other than Redeemable Stock) to a Person who is not a Restricted
Subsidiary, including an issuance or sale permitted by the Indenture for cash or
other property upon the conversion of any Indebtedness of the Company subsequent
to the Issue Date, or from the issuance of any options, warrants or other rights
to acquire Capital Stock of the Company (in each case, exclusive of any
Redeemable Stock or any options, warrants or other rights that are redeemable at
the option of the holder, or are required to be redeemed, prior to the Stated
Maturity of the Notes) plus (3) an amount equal to the net reduction in
Investments in Unrestricted Subsidiaries resulting from payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other transfers of
assets, in each case to the Company or any Restricted Subsidiary from
Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in the case of any Unrestricted Subsidiary, the
amount of Investments previously made by the Company and any Restricted
Subsidiary in such Unrestricted Subsidiary, plus (4) $10.0 million.
The provisions of the foregoing paragraph shall not prohibit: (i) the
payment of any dividend within 60 days after the date of declaration thereof if,
at such date of declaration, such payment would comply with the foregoing
paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness including premium, if any, and
accrued and unpaid interest, with the proceeds of, or in exchange for, Permitted
Refinancing Indebtedness; (iii) the repurchase, redemption or other acquisition
of Capital Stock of the Company in exchange for, or out of the proceeds of a
substantially concurrent offering of, shares of Capital Stock (other than
Redeemable Stock) of the Company; (iv) the acquisition of Subordinated
Indebtedness of the Company in exchange for, or out of the proceeds of, a
substantially concurrent offering of, shares of the Capital Stock of the Company
(other than Redeemable Stock); (v) the purchase, redemption, acquisition,
cancellation or other retirement for value of shares of Capital Stock of the
Company, options on any such shares or related stock appreciation rights or
similar securities held by officers, directors or employees or former directors,
officers or employees (or their transferees, estates or beneficiaries under
their estates), upon death, disability, retirement, severance or termination of
employment or service or pursuant to any agreement under which such shares of
stock or related rights were issued; provided that the aggregate cash
consideration paid for such purchase, redemption, acquisition, cancellation or
other retirement of such shares of Capital Stock or related rights after the
Issue Date does not exceed an aggregate amount of $6.0 million and that any
consideration in excess of such $6.0 million is in the form of Permitted
Indebtedness; (vi) the redemption of any Stock Purchase Rights issued under the
Stockholder Protection Rights Agreement; (vii) the payment by the Company of one
or more cash dividends; PROVIDED that (A) the aggregate amount of such dividends
does not exceed $8.0 million and (B) at the time of such payment, a majority of
the Voting Stock of the Company shall be held by persons other than Affiliates
of the Company; (viii) payments or distributions
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pursuant to or in connection with a consolidation, merger or transfer of assets
that complies with the provisions of the Indenture applicable to consolidations,
mergers, conveyances, transfers or leases and (ix) payments pursuant to the plan
of merger relating to the CasTech Acquisition as in effect on the Issue Date or
pursuant to the assertion of appraisal rights in connection with the CasTech
Merger; PROVIDED that, in each case except in clauses (i), (iii) and (ix), no
Default or Event of Default shall have occurred and be continuing or occur as a
consequence of the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding paragraph (other
than the Restricted Payments referred to in clauses (i) through (iv) and (ix)
thereof) shall be included once in calculating whether the conditions of clause
(C) of the second preceding paragraph have been met with respect to any
subsequent Restricted Payments. For purposes of determining compliance with this
"Limitation on Restricted Payments" covenant, in the event that a Restricted
Payment meets the criteria of more than one of the types of Restricted Payments
described in clauses (i) through (ix) of the preceding paragraph, the Company,
in its sole discretion, shall classify such Restricted Payment and only be
required to include the amount and type of such Restricted Payment in one of
such clauses.
In the event of an issuance of Capital Stock of the Company and (i) the
repurchase, redemption or other acquisition of Capital Stock in exchange for or
out of the proceeds of such issuance or (ii) the redemption, repurchase,
defeasance or other acquisition or retirement of Subordinated Indebtedness with
the proceeds of or in exchange for such issuance, then, in calculating whether
the conditions of clause (C) of the third preceding paragraph have been met with
respect to any subsequent Restricted Payments, the proceeds of any such issuance
shall be included under such clause (C) only to the extent such proceeds are not
applied as described in clause (i) or (ii) of this paragraph.
LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES
The Company will not, and will not permit any Restricted Subsidiary to,
create or otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the
Company or any other Restricted Subsidiary, (ii) pay any Indebtedness or other
obligations owed to the Company or any other Restricted Subsidiary, (iii) make
loans or advances to the Company or any other Restricted Subsidiary or (iv)
transfer any of its property or assets to the Company or any other Restricted
Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Issue Date in the New Bank Credit Facility,
the Indenture or any other agreements in effect on the Issue Date, and any
amendments, supplements, extensions, refinancings, renewals, restatements,
replacements or modifications of any of the foregoing; PROVIDED that the
encumbrances and restrictions in any such amendments, supplements, extensions,
refinancings, renewals, restatements, replacements or modifications are no less
favorable in any material respect to the Holders than those encumbrances or
restrictions that are then in effect and that are being amended, supplemented,
extended, refinanced, renewed, restated, replaced or modified; (ii) existing
under or by reason of applicable law; (iii) existing with respect to any Person
or the property or assets of such Person acquired by the Company or any
Restricted Subsidiary and existing at the time of such acquisition, which
encumbrances or restrictions (A) are not applicable to any Person or the
property or assets of any Person other than such Person or the property or
assets of such Person so acquired and (B) were not put in place in anticipation
of such acquisition, and any amendments, supplements, extensions, refinancings,
renewals, restatements, replacements or modifications of any of the foregoing;
PROVIDED that the encumbrances and restrictions in any such amendments,
supplements, extensions, refinancings, renewals, restatements, replacements or
modifications are no less favorable in any material respect to the Holders than
those encumbrances or restrictions that are then in effect and that are being
amended, supplemented, extended, refinanced, renewed, restated, replaced or
modified; (iv) in the case of clause (iv) of the preceding paragraph, arising or
agreed to in the ordinary course of business (A) that restrict in a customary
manner the subletting, assignment or transfer of any property or asset that
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is a lease, license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by the Indenture or (C) not
relating to any Indebtedness and, in each of case (A), (B) or (C), that do not,
individually or in the aggregate, detract from the value of property or assets
of the Company or any Restricted Subsidiary in any manner material to the
Company or any Restricted Subsidiary; (v) with respect to a Restricted
Subsidiary and imposed pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary; or (vi) with respect to a
Securitization Subsidiary, pursuant to an agreement relating to Indebtedness of
a Securitization Subsidiary which is permitted under the covenant described
above under "Limitation on Indebtedness" or pursuant to an agreement relating to
a Permitted Receivables Financing by a Securitization Subsidiary. Nothing
contained in the preceding paragraph shall prevent the Company or any Restricted
Subsidiary from restricting the sale or other disposition of property or assets
of the Company or any of its Restricted Subsidiaries that secure Indebtedness of
the Company or any of its Restricted Subsidiaries.
LIMITATION ON THE ISSUANCE OF CAPITAL STOCK OF RESTRICTED SUBSIDIARIES
The Company will not permit any Restricted Subsidiary, directly or
indirectly, to issue or sell any shares of its Capital Stock (including options,
warrants or other rights to purchase shares of such Capital Stock) except (i) to
the Company or a Wholly Owned Restricted Subsidiary, (ii) if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary or (iii) to the extent such shares
represent directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary.
LIMITATION ON ASSET SALES
The Company will not, and will not permit any Restricted Subsidiary to,
effect any Asset Disposition unless: (i) such Asset Disposition is effected at
fair market value (as determined in good faith by the Board of Directors of the
Company); (ii) in the case of any Asset Disposition or series of related Asset
Dispositions for a total consideration in excess of $5.0 million, at least 75%
of the consideration is received in cash; and (iii) in the event and to the
extent that the Net Cash Proceeds received by the Company or any of its
Restricted Subsidiaries from one or more Asset Dispositions occurring on or
after the Issue Date in any period of 12 consecutive months exceed the lesser of
(A) $20 million or (B) 10% of Consolidated Net Tangible Assets as of the
beginning of such 12-month period, then the Company shall or shall cause the
relevant Restricted Subsidiary to within 12 months after the date Net Cash
Proceeds so received exceeds the lesser of (x) $20.0 million or (y) such 10% of
Consolidated Net Tangible Assets, apply an amount equal to such excess Net Cash
Proceeds as provided in the following paragraph.
An amount equal to such excess Net Cash Proceeds shall be applied (i) first,
to the extent the Company or such Restricted Subsidiary elects or is otherwise
required to, to permanently repay Senior Indebtedness of the Company or Senior
Indebtedness of any Restricted Subsidiary, in each case owing to a Person other
than the Company or any of its Restricted Subsidiaries; PROVIDED that
notwithstanding the foregoing, if, after first applying such excess Net Cash
Proceeds to permanently repay all of the then outstanding Senior Indebtedness
other than Indebtedness under the Revolving Loan Facility, the application of
any remaining portion of such excess Net Cash Proceeds to repay Senior
Indebtedness under the Revolving Loan Facility shall satisfy the requirements of
this clause (i) whether or not such repayment results in a permanent reduction
in the commitments available under such Revolving Loan Facility, (ii) second, to
the extent of the balance of such excess Net Cash Proceeds after application in
accordance with clause (i), and to the extent the Company elects, to invest such
amount (or enter into a definitive agreement committing to so invest within 12
months after the date of such agreement), in property or assets that are to be
used in the Aluminum Business (as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive and evidenced
by a Board Resolution) and (iii) third, to the extent of the balance of such
excess Net Cash Proceeds after application in accordance with clauses (i) and
(ii), offer to apply (no later than the end of the 12-month period referred
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to in clause (iii) of the preceding paragraph) such excess Net Cash Proceeds (to
the extent not applied pursuant to clauses (i) and (ii) above) ("Excess
Proceeds") as provided in the following paragraph.
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined
below) totals at least $10.0 million, the Company will, not later than the
fifteenth Business Day of such month, mail an Offer (an "Excess Proceeds Offer")
with respect to an Offer to Purchase from the Holders on a pro rata basis an
aggregate principal amount of Notes equal to the Excess Proceeds on such date,
at a purchase price equal to 100% of the principal amount of the Notes plus
accrued interest to the Purchase Date (the "Excess Proceeds Payment"). Any Offer
to Purchase shall be governed by and effected in accordance with the Offer for
such Offer to Purchase.
The Company will publicly announce the results of the Excess Proceeds Offer
as soon as practicable after the Purchase Date.
For purposes of the "Limitation on Asset Sales" covenant, any Excess
Proceeds not required to purchase Notes tendered in response to the Offer to
Purchase shall no longer constitute Net Cash Proceeds received from Asset
Dispositions.
Notwithstanding the foregoing provisions of the "Limitation on Asset Sales"
covenant, the Company and its Restricted Subsidiaries may, in the ordinary
course of business, exchange all or a portion of their assets for assets which
are of a type used in the Aluminum Business or Capital Stock of a Person all or
substantially all of whose assets are of a type used in the Aluminum Business,
or a combination of any such assets and cash; PROVIDED that (i) no Default or
Event of Default shall have occurred and be continuing or occur as a consequence
of such Asset Disposition, (ii) a majority of the Board of Directors of the
Company who are disinterested in the subject matter of the Asset Disposition
shall have pursuant to a Board Resolution determined that such Asset Disposition
is fair to the Company or such Restricted Subsidiary, as the case may be, (iii)
any cash received pursuant to any such Asset Disposition shall be applied in the
manner applicable to excess Net Cash Proceeds from an Asset Disposition as set
forth in the preceding paragraphs discussing the "Limitation on Asset Sales"
covenant and (iv) in the event the Company or the Restricted Subsidiary, as the
case may be, receives any Capital Stock of a Person pursuant to such exchange,
(A) such Person becomes a Restricted Subsidiary of the Company by virtue of such
exchange or (B) such exchange constitutes an Investment excepted from the
definition of Restricted Investment pursuant to clause (x) of the definition
thereof.
LIMITATION ON TRANSACTIONS WITH STOCKHOLDERS AND AFFILIATES
The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, renew or extend any transaction (including,
without limitation, the purchase, sale, lease or exchange of property or assets,
or the rendering of any service) with any Person known to the Company to be the
holder (or any Affiliate of such holder) of 10% or more of any class of Capital
Stock of the Company or with any Affiliate of the Company or any Restricted
Subsidiary (each, a "Related Party Transaction"), except upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than could be obtained, at the time of such transaction or at the time of the
execution of the agreement providing therefor, in a comparable arm's-length
transaction with a Person that is not such a holder or an Affiliate.
Without limiting the foregoing, (i) any Related Party Transaction or series
of Related Party Transactions with an aggregate value in excess of $5.0 million
must first be approved by a majority of the Board of Directors of the Company
who are disinterested in the subject matter of the transaction pursuant to a
Board Resolution and (ii) with respect to any Related Party Transaction or
series of Related Party Transactions with an aggregate value in excess of $15.0
million, the Company must first obtain a favorable written opinion from a
nationally recognized investment banking firm as to the fairness from a
financial point of view of such transaction to the Company or such Restricted
Subsidiary, as the case may be.
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The foregoing limitation does not limit, and shall not apply to: (i) the
payment of reasonable and customary regular fees to directors of the Company who
are not employees of the Company; (ii) any Restricted Payments not prohibited by
the "Limitation on Restricted Payments" covenant; (iii) transactions in
connection with a Permitted Receivables Financing; (iv) any loans or advances by
the Company to employees of the Company or a Restricted Subsidiary in the
ordinary course of business and in furtherance of the Company's business, in an
aggregate amount not to exceed $2.0 million at any one time outstanding; (v) any
grant of stock options or other rights to employees or directors of the Company
or any of its Subsidiaries pursuant to benefit plans or agreements adopted or
authorized by the Company's non-employee Directors; (vi) payments by the Company
or a Restricted Subsidiary to employees of the Company or any of its
Subsidiaries (A) of salary, bonus and other ordinary compensation in the
ordinary course of business and (B) pursuant to employment agreements entered
into in compliance with the foregoing two paragraphs; (vii) any transaction
between the Company and any Wholly Owned Restricted Subsidiary or between any
Wholly Owned Restricted Subsidiaries; and (viii) the consummation of the
transactions contemplated by the Plan of Merger as in effect on the Issue Date.
CERTAIN POSITIVE CREDIT EVENTS
The Indenture will provide that if an Investment Grade Rating is assigned to
the Notes, then at the election of the Board of Directors of the Company, which
election shall be evidenced by a Board Resolution, the following provisions
shall be effective as of the date of such Board Resolution: (i) the Company
shall be released from its obligations under the "Limitation on Indebtedness,"
"Limitation on Restricted Payments," "Limitation on Dividend and other Payment
Restrictions Affecting Restricted Subsidiaries," "Limitation on the Issuance of
Capital Stock of Restricted Subsidiaries" and "Limitation on Asset Sales"
covenants and clause (iii) under "--Consolidation, Merger and Sale of Assets"
described below, and the occurrence of any event specified in clause (iii) under
"--Events of Default" with respect to such covenants and such clause shall be
deemed not to result in an Event of Default; (ii) the Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, permit to
exist any Lien on any of its property or assets (including Capital Stock of a
Restricted Subsidiary) (other than Permitted Liens), without providing that the
Notes and, in the case of each Guarantor, the Subsidiary Guarantees of that
Guarantor, shall be equally and ratably secured; and (iii) the Company shall
not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction unless (A) the Company or such Restricted Subsidiary
(1) would be entitled to create a Lien on such property or assets securing
Indebtedness in an amount equal to the Attributable Debt with respect to such
Sale/Leaseback Transaction without equally and ratably securing the Notes
pursuant to the covenant described under clause (ii) above, or (2) applies the
proceeds of such transaction within 12 months to (x) the purchase or acquisition
of property or assets that are to be used in the Aluminum Business (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution) or (y)
the redemption or repayment of Senior Indebtedness, and (B) the net proceeds
received by the Company or any Restricted Subsidiary in connection with such
Sale/Leaseback Transaction are at least equal to the fair value (as determined
by the Board of Directors of the Company) of such property or assets.
REPURCHASE OF NOTES UPON A CHANGE OF CONTROL
Upon the occurrence of a Change of Control, each Holder of a Note shall have
the right to have such Note repurchased by the Company on the terms and
conditions precedent set forth in the Indenture. The Company shall, within 30
days following a Change of Control, mail an Offer ("Change of Control Offer")
with respect to an Offer to Purchase all outstanding Notes at a purchase price
equal to 101% of the principal amount thereof plus accrued interest to the
Purchase Date (the "Change of Control Payment"). Prior to the mailing of any
Change of Control Offer, but in any event within 30 days following any Change of
Control, the Company will (i) repay in full all indebtedness of the Company that
would prohibit the repurchase of the Notes pursuant to the Offer to Purchase or
(ii) obtain any requisite consents under
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instruments governing any such indebtedness of the Company to permit the
repurchase of the Notes pursuant to the Offer to Purchase. Compliance with the
covenant in the preceding sentence shall be a condition precedent to the
obligation of the Company to repurchase Notes pursuant to the Indenture.
The Company will publicly announce the results of the Change of Control
Offer on or as soon as practicable after the applicable Purchase Date.
If the Company is unable to repay all of its indebtedness that would
prohibit repurchase of the Notes or is unable to obtain the consents of the
holders of indebtedness, if any, of the Company outstanding at the time of a
Change of Control whose consent would be so required to permit the repurchase of
Notes, then the Company will have breached the "Repurchase of Notes upon a
Change of Control" covenant of the Indenture. This breach will constitute an
Event of Default under the Indenture if it continues for a period of 30
consecutive days after written notice is given to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes
outstanding. In addition, the failure by the Company to repurchase Notes at the
conclusion of the Change of Control Offer will constitute an Event of Default
without any waiting period or notice requirements.
There can be no assurances that the Company will have sufficient funds
available at the time of any Change of Control to make any debt payment
(including repurchases of Notes) required by the "Repurchase of Notes upon a
Change of Control" covenant of the Indenture (as well as may be contained in
other securities of the Company that might be outstanding at the time). The
"Repurchase of Notes upon a Change of Control" covenant of the Indenture will,
unless the consents referred to above are obtained, require the Company to repay
all indebtedness then outstanding that by its terms would prohibit such Note
repurchase, either prior to or concurrently with such Note repurchase. The New
Bank Credit Facility prohibits the Company from purchasing any Notes and also
provides that the occurrence of certain change of control events with respect to
the Company constitutes a default thereunder.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Neither the Company nor any Guarantor shall (A) consolidate with, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or substantially an
entirety in one transaction or a series of related transactions) to, any Person
(other than a consolidation with or merger with or into, or sale, conveyance,
transfer, lease or disposition to, the Company or a Wholly Owned Restricted
Subsidiary that is a Guarantor and has a positive net worth; PROVIDED that, in
connection with any such transaction between the Company or any Guarantor and
the Company or such Wholly Owned Restricted Subsidiary, no consideration (other
than common stock in the surviving Person or the Company) shall be issued or
distributed to the stockholders of the Company or such Guarantor, as the case
may be) or (B) permit any Person to merge with or into the Company or such
Guarantor, as the case may be, unless: (i) the Company or such Guarantor, as the
case may be, shall be the continuing Person, or the Person (if other than the
Company or such Guarantor) formed by such consolidation or into which the
Company or such Guarantor is merged or that acquired or leased such property and
assets of the Company or such Guarantor shall be a corporation organized and
validly existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee, all of the obligations of the Company on
the Notes and under the Indenture or all obligations of such Guarantor under its
Subsidiary Guarantee, as the case may be; (ii) immediately after giving effect
to such transaction, no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such transaction on a pro
forma basis, the Company could Incur at least $1.00 of Indebtedness (other than
Permitted Indebtedness); (iv) in the case of any sale, exchange or transfer of
all or substantially all of the assets of a Guarantor to an Affiliate of the
Company (other than a Wholly Owned Restricted Subsidiary that is a Guarantor),
the Company shall first have obtained a favorable written opinion from a
nationally recognized investment banking firm as to the fairness from a
financial point of view of such transaction to such Guarantor; and (v) the
Company delivers to the Trustee an officers' certificate (attaching the
arithmetic
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computations to demonstrate compliance with clause (iii) above) and opinion of
counsel, in each case stating that such consolidation, merger or transfer and
such supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with; PROVIDED that clause (iii) above does not apply if, in the good faith
determination of the Board of Directors of the Company, whose determination
shall be evidenced by a Board Resolution, the principal purpose of such
transaction is to change the state of incorporation of the Company or the
Guarantor, as the case may be; and PROVIDED FURTHER that any such transaction
shall not have as one of its purposes the evasion of the foregoing limitations.
COMMISSION REPORTS
Notwithstanding that the Company may not be required to remain subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company will file with the Commission and provide the Trustee and Holders of the
Notes with such annual reports and such information, documents and other reports
as are specified in Sections 13 and 15(d) of the Exchange Act (excluding however
information with respect to benefit plans and long-term compensation
arrangements and, in the case of Holders of the Notes, exhibits to such reports
specified in Sections 13 and 15(d) of the Exchange Act) and applicable to a U.S.
corporation subject to such Sections, such information, documents and other
reports to be so filed and provided at the times specified for the filing of
such information, documents and reports under such Sections.
EVENTS OF DEFAULT
The following events will be defined as "Events of Default" in the
Indenture: (a) default in the payment of principal of, or premium, if any, on
any Note when the same becomes due and payable (whether or not such payment is
prohibited by the provisions described under "Ranking" above) at maturity, upon
acceleration, redemption or otherwise, including, without limitation, payments
of any Change of Control Payment or Excess Proceeds Payment; (b) default in the
payment of interest on any Note when the same becomes due and payable (whether
or not such payment is prohibited by the provisions described under "Ranking"
above), and such default continues for a period of 30 consecutive days; (c) the
Company or any Guarantor defaults in the performance of or breaches any other
covenant or agreement in the Indenture or under the Notes and such default or
breach continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes; (d) there occurs with respect to any issue or issues of Indebtedness of
the Company or any of its Significant Subsidiaries having an outstanding
principal amount, in the aggregate for all such issues of all such Persons, of
$10.0 million or more, whether such Indebtedness now exists or shall hereafter
be created, (i) an event of default that has caused the holder thereof to
declare such Indebtedness to be due and payable prior to its Stated Maturity
and/or (ii) the failure to make a principal payment at the final (but not any
interim) fixed maturity; (e) any final judgment or order for the payment of
money in excess of $10.0 million in the aggregate for all such final judgments
or orders against all such Persons shall be rendered against the Company or any
of its Significant Subsidiaries and shall not be paid or discharged, and there
shall be any period of 60 consecutive days following entry of the final judgment
or order that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed $10.0
million during which a stay of enforcement of such final judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; (f) a court
having jurisdiction in the premises enters a decree or order for (A) relief in
respect of the Company or any of its Significant Subsidiaries in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any of
its Significant Subsidiaries or for all or substantially all of the property and
assets of the Company or any of its Significant Subsidiaries or (C) the winding
up or liquidation of the affairs of the Company or any of its Significant
Subsidiaries and, in each case, such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; (g) the
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Company or any of its Significant Subsidiaries (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any of its Significant
Subsidiaries or for all or substantially all of the property and assets of the
Company or any of its Significant Subsidiaries or (C) effects any general
assignment for the benefit of creditors; or (h) a Subsidiary Guarantee ceases to
be in full force and effect (other than in accordance with the terms of such
Subsidiary Guarantee) or a Guarantor denies or disaffirms in writing its
obligations under its Subsidiary Guarantee.
If an Event of Default (other than an Event of Default specified in clause
(f) or (g) above) occurs and is continuing under the Indenture, the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, by written notice to the Company (and to the Trustee if such notice
is given by the Holders (the "Acceleration Notice")), may, and the Trustee at
the request of such Holders shall, declare the principal of, premium, if any,
and accrued interest on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal of, premium, if any, and accrued
interest shall be immediately due and payable, provided, that so long as the New
Bank Credit Facility is in effect such declaration shall not become effective
until the earlier of (x) five business days after receipt of notice of such
declaration by the Representative of the holders of the Senior Indebtedness
under the New Bank Credit Facility from the Trustee and (y) acceleration of the
Senior Indebtedness under the New Bank Credit Facility. In the event of a
declaration of acceleration because an Event of Default set forth in clause (d)
above has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default or payment default
triggering such Event of Default pursuant to clause (d) shall be remedied or
cured by the Company and/or the relevant Significant Subsidiaries or waived by
the holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in clause
(f) or (g) above occurs, the principal of, premium, if any, and accrued interest
on the Notes then outstanding 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 at least a majority in principal amount of the
outstanding Notes by written notice to the Company and to the Trustee may waive
all past defaults and rescind and annul a declaration of acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment of
the principal of, premium, if any, and interest on the Notes that have become
due solely by such declaration of acceleration, have been cured or waived and
(ii) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. For information as to the waiver of defaults, see
"--Modification and Waiver."
The Holders of at least a majority in aggregate principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or the Indenture or that may involve the
Trustee in personal liability, and may take any other action it deems proper
that is not inconsistent with any such direction received from Holders of Notes.
A Holder may not pursue any remedy with respect to the Indenture or the Notes
unless: (i) the Holder gives the Trustee written notice of a continuing Event of
Default; (ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer the Trustee indemnity satisfactory to the
Trustee against any costs, liability or expense; (iv) the Trustee does not
comply with the request within 60 days after receipt of the request and the
offer of indemnity; and (v) during such 60-day period, the Holders of at least a
majority in aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request. However, such
limitations do not apply to the right of any Holder of a Note to receive payment
of the principal of, premium, if any, or interest on, such Note or to bring suit
for the enforcement of any such payment, on or after the due date expressed in
the Notes, which right shall not be impaired without the consent of the Holder.
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The Indenture will require certain officers of the Company to certify, on or
before a date not more than 120 days after the end of each fiscal year, that
they have conducted or supervised a review of the activities of the Company and
its Restricted Subsidiaries and the Company's and its Restricted Subsidiaries'
performance under the Indenture and that, to the best of such officer's
knowledge, based upon such review, the Company has fulfilled all obligations
thereunder or, if there has been a default in the fulfillment of any such
obligation, specifying each such default and the nature and status thereof. The
Company will also be obligated to notify the Trustee of any default or defaults
in the performance of any covenants or agreements under the Indenture.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company,
the Guarantors and the Trustee with the consent of the Holders of not less than
a majority in aggregate principal amount of the outstanding Notes; provided that
no such modification or amendment may, without the consent of each Holder of the
Notes affected thereby, (i) change the Stated Maturity of the principal of, or
any installment of interest on, any Note, (ii) reduce the principal amount of,
or premium, if any, or interest on, any Note, (iii) change the place or currency
of payment of principal of, premium, if any, or interest on, any Note, (iv)
impair the right to institute suit for the enforcement of any payment on or
after the Stated Maturity (or, in the case of a redemption, on or after the
Redemption Date) of any Note, (v) reduce the above-stated percentage of
outstanding Notes the consent of whose Holders is necessary to modify or amend
the Indenture, (vi) waive a default in the payment of principal of, premium, if
any, or interest on the Notes, (vii) reduce the percentage or aggregate
principal amount of outstanding Notes the consent of whose Holders is necessary
for waiver of compliance with certain provisions of the Indenture or for waiver
of certain defaults, (viii) make any change to the subordination provisions of
the Indenture that could adversely affect the Holders of Notes or (ix) release
any Guarantor from any of its obligations under its Subsidiary Guarantee or the
Indenture other than in accordance with the provisions of the Indenture, or
amend or modify any provision relating to such release.
Neither the Company nor any of its subsidiaries will, 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 the
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be 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.
DEFEASANCE
DEFEASANCE AND DISCHARGE. The Indenture will provide that the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Notes (and each Guarantor will be discharged from any and all
obligations in respect of the Subsidiary Guarantees) on the 123rd day after the
deposit referred to below, and the provisions of the Indenture will no longer be
in effect with respect to the Notes and the Subsidiary Guarantees (except for,
among other matters, certain obligations to register the transfer or exchange of
the Notes, to replace stolen, lost or mutilated Notes, to maintain paying
agencies and to hold monies for payment in trust) if, among other things, (A)
the Company has deposited with the Trustee, in trust, money and/or U.S.
Government Obligations that through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of, premium, if any, and accrued interest on the
Notes on the Stated Maturity of such payments in accordance with the terms of
the Indenture and the Notes, (B) the Company has delivered to the Trustee (i)
either (x) an opinion of counsel to the effect that Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of the
Company's exercise of its option under this "Defeasance" provision and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had
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not occurred, which opinion of counsel must be based upon (and accompanied by a
copy of) a ruling of the Internal Revenue Service to the same effect unless
there has been a change in applicable Federal income tax law after the date of
the Indenture such that a ruling is no longer required or (y) a ruling directed
to the Trustee received from the Internal Revenue Service to the same effect as
the aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to the
effect that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit, the
trust fund will not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law and (C)
immediately after giving effect to such deposit on a pro forma basis, no Default
or Event of Default shall have occurred and be continuing on the date of such
deposit or during the period ending on the 123rd day after the date of such
deposit, and such deposit shall not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the
Company is a party or by which the Company is bound.
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. The
Indenture further will provide that the provisions of the Indenture will no
longer be in effect with respect to clause (iii) under "--Consolidation, Merger
and Sale of Assets" and all the covenants described under "--Certain Covenants,"
and clause (c) under "--Events of Default" with respect to such covenants,
clause (iii) under "--Consolidation, Merger and Sale of Assets" and clauses (d)
and (e) under "--Events of Default" shall be deemed not to be Events of Default,
upon, among other things, the deposit with the Trustee, in trust, of money
and/or U.S. Government Obligations that through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of, premium, if any, and accrued
interest on the Notes on the Stated Maturity of such payments in accordance with
the terms of the Indenture and the Notes, the satisfaction of the provisions
described in clauses (B)(ii) and (C) of the preceding paragraph and the delivery
by the Company to the Trustee of an opinion of counsel to the effect that, among
other things, the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance of certain
covenants and Events of Default and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred.
DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT. In the event the Company
exercises its option to omit compliance with certain covenants and provisions of
the Indenture with respect to the Notes as described in the immediately
preceding paragraph and the Notes are declared due and payable because of the
occurrence of an Event of Default that remains applicable, the amount of money
and/or U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on the Notes at the time of their Stated Maturity
but may not be sufficient to pay amounts due on the Notes at the time of the
acceleration resulting from such Event of Default. However, the Company will
remain liable for such payments.
REGARDING THE TRUSTEE
Harris Trust and Savings Bank is the Trustee under the Indenture and is also
the Exchange Agent in the Exchange Offer. An affiliate of Harris Trust and
Savings Bank is a party to certain credit agreements with the Company and its
subsidiaries, including the New Bank Credit Facility, borrowings under which
constitute Senior Indebtedness under the Indenture. Harris Trust and Savings
Bank may also maintain other banking arrangements with the Company in the
ordinary course of business.
FORM, DENOMINATION AND BOOK-ENTRY PROCEDURES
Old Notes initially sold to institutional "accredited investors" were issued
only in fully registered definitive form without coupons, in denominations of
$250,000 of principal amount and integral multiples of $1,000 in excess thereof.
New Notes may be issued only in fully registered definitive form without
coupons, in denominations of $1,000 and integral multiplies thereof.
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The Old Notes initially sold to Qualified Institutional Buyers (as defined
in Rule 144A under the Securities Act) were represented by a single global Note
(the "Global Old Note") in definitive fully registered form without coupons,
registered in the name of a nominee of DTC, as depositary. The Global Old Note,
to the extent directed by the holders thereof in their Letters of Transmittal,
will be exchanged through book-entry electronic transfer for a new single global
New Note in definitive fully registered form without coupons, registered in the
name of a nominee of DTC, as depositary (the "Global New Note" and collectively
with the Global Old Note, the "Global Notes" and each a "Global Note"). The
Global New Note will, upon request, be exchangeable for other New Notes in
definitive fully registered form without coupons, in denominations of $1,000 and
integral multiples thereof, but only upon ten days prior written notice to the
Trustee given in accordance with DTC's customary procedures. The Global New Note
will also be exchangeable in certain other limited circumstances discussed
below. The Company, the Trustee and any agent thereof will be entitled to treat
DTC's nominee as the sole owner and holder of the unexchanged portion of the
Global Notes for all purposes.
In connection with the issuance of the Global New Note, DTC will credit on
its book-entry registration and transfer system the principal amount of Global
New Note represented by New Notes deposited with it to the accounts of
institutions that have accounts with DTC or its nominee ("participants").
Ownership of beneficial interests in Global New Note will be limited to
participants or persons that may hold beneficial interests through participants.
Ownership of beneficial interests in Global New Note will be shown on, and the
transfer of those ownership interests will be effected only through, records
maintained by DTC (with respect to participants' interests) or such participants
(with respect to the owners of beneficial interests in the Global New Note).
So long as DTC or its nominee is the registered holder and owner of a New
Note representing the Global New Note, DTC or such nominee, as the case may be,
will be considered the sole owner and holder of the Global New Note for all
purposes of such New Notes and for all purposes under the Indenture. Unless DTC
notifies the Company that it is unwilling or unable to continue as depositary
for such Global New Note, DTC ceases to be a clearing agency registered under
the Exchange Act, the Company delivers to the Trustee a written notice that the
Global New Note shall be exchangeable or an Event of Default (as defined in the
Indenture) or event that after notice or lapse of time, or both, would become an
Event of Default, has occurred and is continuing with respect to the New Notes,
owners of beneficial interests in the Global New Note will not be entitled to
have the New Notes represented by the Global New Note registered in their names,
will not receive or be entitled to receive physical delivery of certificated New
Notes in definitive form and will not be considered to be the owners or holders
of any New Notes under the Indenture or such Global New Note, except as
otherwise described herein.
Payment of principal of (and premium, if any) and interest on the Global New
Note will be made to DTC or its nominee, as the case may be, as the registered
owner and holder thereof. All payments of principal of (and premium, if any) and
interest on the Global New Note held by DTC will be made by the Company to DTC
in immediately available funds, and in turn by DTC to participants in
clearing-house or next day funds.
The Company expects that DTC or its nominee, upon receipt of any payment of
principal or interest in respect of a Global Note, will credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Note as shown on the records of
DTC or its nominee. The Company also expects that payments by participants to
owners of beneficial interests in such Global Note held through such
participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers registered
in the names of nominees for such customers. Such payments will be the
responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules and will be settled in same-day funds. The Company
expects that DTC will take any action permitted to be taken by a Holder of New
Notes only at the direction of one or more participants to whose account
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the DTC interests in a Global Note is credited and only in respect of such
portion of the aggregate principal amount of the Note as to which such
participant or participants has or have given such direction.
The Company understands that DTC is a limited purpose trust company
organized under the laws of the State of New York, a "banking organization"
within the meaning of New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the Uniform Commercial
Code and a "Clearing Agency" registered pursuant to the provisions of Section
17A of the Exchange Act. DTC was created to hold securities for its participants
and facilitate the clearance and settlement of securities transactions between
participants through electronic book-entry changes in accounts of its
participants, thereby eliminating the need for physical movement of certificates
and certain other organizations. Indirect access to the DTC system is available
to others such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a participant, either directly or
indirectly ("indirect participants").
Although DTC, is expected to follow the foregoing procedures in order to
facilitate transfers of interests in a Global Note among participants of DTC,
DTC is under no obligation to perform or continue to perform such procedures,
and such procedures may be discontinued at any time. Neither the Company nor the
Trustee will have any responsibility for the performance by DTC or its
participants or indirect participants of its obligations under the rules and
procedures governing their operations.
GOVERNING LAW
The Indenture provides that it and the Notes will be governed by, and
construed in accordance with, the laws of the State of New York 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.
REGISTRATION RIGHTS AGREEMENT
The Company is party to the Registration Rights Agreement with Morgan
Stanley & Co. Incorporated and NatWest Capital Markets Limited, as the initial
purchasers of the Old Notes, pursuant to which the Company has agreed, for the
benefit of the holders of the Old Notes, to use its reasonable best efforts, at
its cost, to file and cause to become effective a registration statement with
respect to the Exchange Offer to exchange the Old Notes for the New Notes. Upon
such registration statement being declared effective, the Company has agreed to
offer the New Notes in return for surrender of the Old Notes. For each Old Note
surrendered to the Company under the Exchange Offer, the Holder will receive a
New Note of equal principal amount. Interest on each New Note will accrue from
September 20, 1996. In the event that applicable interpretations of the staff of
the Commission do not permit the Company to effect the Exchange Offer or under
certain other circumstances, the Company has agreed, at its cost, to use its
reasonable best efforts to cause to become effective the Shelf Registration
Statement with respect to resales of the Old Notes and to keep such registration
statement effective until September 20, 1999. The Company shall, in the event of
such a shelf registration, provide to each holder copies of the prospectus,
notify each holder when the Shelf Registration Statement for the Old Notes has
become effective and take certain other actions as are required to permit
resales of the Old Notes.
In the event an Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective on or prior to April 1, 1997, then the
annual interest rate borne by the Old Notes shall be increased to 11 1/4%. If
such Exchange Offer is not consummated or such Shelf Registration Statement is
not declared effective by October 1, 1997, then the annual interest rate borne
by the Old Notes shall be increased by an additional 0.5%. Upon consummation of
such Exchange Offer or the effectiveness of such Shelf Registration Statement,
the interest rate borne by the Old Notes will revert to 10 3/4%.
In the event an exchange offer is consummated, the Company will not be
required under the Registration Rights Agreement to file the Shelf Registration
Statement to register any outstanding Old Notes, and the interest rate on such
Old Notes will remain at its initial level of 10 3/4%. The Exchange Offer
56
<PAGE>
shall be deemed to have been consummated upon the earlier to occur of (i) the
Company having exchanged New Notes for all outstanding Old Notes (other than Old
Notes held by a Restricted Holder) pursuant to the Exchange Offer and (ii) the
Company having exchanged, pursuant to the Exchange Offer, New Notes for all Old
Notes that have been tendered and not withdrawn on the date that is 30 days
following the commencement of such Exchange Offer. In such event, holders of Old
Notes seeking liquidity in their investment would have to rely on exemptions to
registration requirements under the securities laws, including the Securities
Act. See "Risk Factors."
Interest on each New Note will accrue from September 20, 1996 or from the
most recent interest payment date to which interest was paid on the Old Note
surrendered in exchange therefor or on the New Note, as the case may be. The New
Notes will bear interest at the original interest rate borne by the Old Notes,
except that, if any interest accrues on the New Notes in respect of any period
prior to their issuance, such interest will accrue at the rate or rates borne by
the Old Notes from time to time during such period.
The summary herein of certain provisions of the Registration Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all the provisions of the Registration Rights
Agreement.
57
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of certain United States federal income tax
consequences applicable to the exchange of Old Notes for New Notes pursuant to
the Exchange Offer (the "Exchange") and the ownership and disposition of New
Notes. This summary deals only with New Notes held as capital assets by Holders
who purchased Old Notes at 100% of their principal amount, and not with special
classes of Holders, such as dealers in securities or currencies, banks,
tax-exempt organizations, life insurance companies, persons that hold New Notes
as a hedge (or hedged against) currency or interest rate risks or that are part
of a straddle or conversion transaction, or persons whose functional currency is
not the U.S. dollar. Investors who purchased the Old Notes at a price other than
100% of their principal amount should consult their tax advisor as to the
possible applicability to them of the amortizable bond premium or market
discount rules. This summary is based on the Internal Revenue Code of 1986, as
amended (the "Code"), its legislative history, existing and proposed regulations
thereunder, published rulings and court decisions, all as currently in effect
and all subject to change at any time, perhaps with retroactive effect.
HOLDERS OF OLD NOTES SHOULD CONSULT THEIR OWN TAX ADVISORS CONCERNING THE
CONSEQUENCES, IN THEIR PARTICULAR CIRCUMSTANCES, UNDER THE CODE AND THE LAWS OF
ANY OTHER TAXING JURISDICTION, OF THE EXCHANGE AND OWNERSHIP OF NEW NOTES.
EXCHANGE OFFER
For United States federal income tax purposes, the Exchange will be
disregarded and each New Note will be treated as a continuation of the
corresponding Old Note. Accordingly, holders will not recognize gain or loss
upon the Exchange.
UNITED STATES HOLDERS
PAYMENTS OF INTEREST
Interest on a New Note will be taxable to a United States Holder (as defined
below), as ordinary income at the time it is received or accrued, depending on
the United States Holder's method of accounting for tax purposes. A "United
States Holder" is a beneficial owner who or that is (i) a citizen or resident of
the United States, (ii) a domestic corporation or (iii) otherwise subject to
United States federal income taxation on a net income basis in respect of the
New Notes.
PURCHASE, SALE, RETIREMENT AND OTHER DISPOSITION OF NEW NOTES
A United States Holder's tax basis in the New Note generally will be its
cost. Upon the sale, retirement or other disposition of a New Note, a United
States Holder will generally recognize gain or loss equal to the difference
between the amount realized (not including any amounts attributable to accrued
and unpaid interest) and the Holder's tax basis in the New Note. Such gain or
loss recognized on the sale or retirement of a New Note will be long-term
capital gain or loss if the holding period of the New Note was more than one
year. The holding period of a New Note acquired by a United States Holder in the
Exchange will include the holding period of the corresponding Old Note.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
Holder of a New Note who is (i) a nonresident alien individual or (ii) a foreign
corporation, partnership or estate or trust, in either case not subject to
United States federal income tax on a net income basis in respect of income or
gain from a New Note.
Under present United States federal income and estate tax law, and subject
to the discussion of backup withholding below:
58
<PAGE>
(i) payments of principal, premium, if any, and interest by the Company or
any of its paying agents to any Holder of a New Note that is a United States
Alien Holder will not be subject to United States federal withholding tax if, in
the case of interest, (a) the beneficial owner of the New Note does not actually
or constructively own 10% or more of the total combined voting power of all
classes of stock of the Company entitled to vote, (b) the beneficial owner of
the New Note is not a controlled foreign corporation that is related to the
Company through stock ownership, and (c) either (A) the beneficial owner of the
New Note certifies to the Company or its agent, under penalties of perjury, that
it is not a United States Holder and provides its name and address or (B) a
securities clearing organization, bank or other financial institution that holds
customers' securities in the ordinary course of its trade or business (a
"financial institution") and holds the New Note certifies to the Company or its
agent under penalties or perjury that such statement has been received from the
beneficial owner by it or by a financial institution between it and the
beneficial owner and furnishes the payor with a copy thereof;
(ii) a United States Alien Holder of a New Note will not be a subject to
United States federal withholding tax on any gain realized on the sale or
exchange of a New Note; and
(iii) a New Note held by an individual who at death is not a citizen or
resident of the United States will not be includible in the individual's gross
estate for purposes of the United States federal estate tax as a result of the
individual's death if (a) the individual did not actually or constructively own
10% or more of the total combined voting power of all classes of stock of the
Company entitled to vote and (b) the income on the New Note would not have been
effectively connected with a United States trade or business of the individual
at the individual's death.
Recently proposed Internal Revenue Service Treasury regulations (the
"Proposed Regulations") would provide alternative methods for satisfying the
certification requirement described in clause (i)(c) above. The Proposed
Regulations also would require, with certain exceptions, in the case of New
Notes held by a foreign partnership, that (x) the certification described in
clause (i)(c) above be provided by the partners rather than by the foreign
partnership and (y) the partnership provide certain information, including a
United States taxpayer identification number. A look-through rule generally
would apply in the case of tiered partnerships. The Proposed Regulations are
proposed to be effective for payments made after December 31, 1997. There can be
no assurance that the Proposed Regulations will be adopted or as to the
provisions that they will include if and when adopted in temporary or final
form.
BACKUP WITHHOLDING AND INFORMATION REPORTING
UNITED STATES HOLDERS
In general, information reporting requirements will apply to payments of
principal, premium, if any, and interest on a New Note and the proceeds of the
sale of a New Note before maturity within the United States to non-corporate
United States Holders, and "backup withholding" at a rate of 31% will apply to
such payments if the United States Holder fails to provide an accurate taxpayer
identification number or is notified by the Internal Revenue Service that it has
failed to report all interest and dividends required to be shown on its federal
income tax returns.
UNITED STATES ALIEN HOLDERS
Under current law, information reporting on Internal Revenue Service Form
1099 and backup withholding will not apply to payments of principal, premium, if
any, and interest made by the Company or a paying agent to a United States Alien
Holder on a New Note; provided, the certification described in clause (i)(c)
under "United States Alien Holders" above is received; and provided further that
the payor does not have actual knowledge that the Holder is a United States
person. The Company or a paying agent, however, may report (on Internal Revenue
Service Form 1042S) payments of interest on New Notes. See the discussion above
with respect to the rules under the Proposed Regulations.
59
<PAGE>
Payments of the proceeds from the sale by a United States Alien Holder of a
New Note made to or through a foreign office of a broker will not be subject to
information reporting or backup withholding, except that if the broker is a
United States person, a controlled foreign corporation for United States tax
purposes or a foreign person 50% or more of whose gross income is effectively
connected with a United States trade or business for a specified three-year
period, information reporting may apply to such payment. Payments of the
proceeds from the sale of a New Note to or through the United States office of a
broker is subject to information reporting and backup withholding unless the
Holder or beneficial owner certifies as to its non-United States status or
otherwise establishes an exemption from information reporting and backup
withholding.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Notes received in exchange for Old Notes where
such Old Notes were acquired as a result of market-making activities or other
trading activities. The Company has agreed that it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale for a period of 90 days from the date of this Prospectus,
or shorter period as will terminate when all Old Notes acquired by
broker-dealers for their own accounts as a result of market-making activities or
other trading activities have been exchanged for New Notes and resold by such
broker-dealers.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers. New Notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Notes. Any broker-dealer
that resells New Notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a distribution
of such New Notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of New Notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days from the date of this Prospectus, or such shorter
period as will terminate when all Old Notes acquired by broker-dealers for their
own accounts as a result of market-making activities or other trading activities
have been exchanged for New Notes and resold by such broker-dealers, the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that request such documents
in the Letter of Transmittal.
60
<PAGE>
VALIDITY OF NEW NOTES
The validity of the New Notes will be passed upon for the Company by
Sullivan & Cromwell, New York, New York. In rendering its opinion on the
validity of the Notes, Sullivan & Cromwell will express no opinion as to Federal
or state laws relating to fraudulent transfers. John E. Merow, a partner of
Sullivan & Cromwell, is a director of the Company and beneficially owns 11,000
shares of the Company's common stock.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1995 and
1994, and the consolidated statements of income, stockholders' equity and cash
flows of the Company for each of the three years in the period ended December
31, 1995, incorporated by reference in this Prospectus, have been incorporated
herein in reliance on the report, which includes an explanatory paragraph with
respect to the Company's change in its method of accounting for postretirement
benefits other than pensions, of Coopers & Lybrand L.L.P., independent certified
public accountants, given on the authority of that firm as experts in accounting
and auditing.
The consolidated financial statements of CasTech as of March 31, 1996 and
1995 and for each of the years in the three-year period ended March 31, 1996
that are included in the Company's Current Report on Form 8-K filed September
26, 1996 have been audited by Ernst & Young LLP, independent auditors, as stated
in their report included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
61
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation--a "derivative action"), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
rights to which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit. The Company's Certificate of Incorporation provides for such limitation
of liability.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<C> <S>
4.1 --Registration Rights Agreement, dated September 20, 1996, between the Company and
Morgan Stanley & Co. Incorporated and NatWest Capital Markets Limited.
4.2 --Indenture dated as of September 20, 1996 between the Company, the Subsidiary
Guarantors named therein and Harris Trust and Savings Bank, Trustee.
4.3 --Form of 10 3/4% Senior Subordinated Note Due 2006 (included in Exhibit 4.2).
5 --Opinion of Sullivan & Cromwell.
10.1 --Credit Agreement dated as of September 20, 1996 among the Company, certain
subsidiaries of the Company, the lenders party thereto and National Westminster Bank
Plc, as agent for such lenders.
12 --Computation of ratio of earnings to fixed charges.
23.1 --Consent of Coopers & Lybrand LLP.
23.2 --Consent of Ernst & Young LLP.
23.3 --Consent of Sullivan & Cromwell (included in Exhibit 5).
24 --Powers of Attorney (included on pages II-3 and II-4 hereof).
25 --Statement of Eligibility of Harris Trust and Savings Bank, Trustee.
99.1 --Form of Letter of Transmittal.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
99.2 --Form of Notice of Guaranteed Delivery.
</TABLE>
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant, pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by any such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether or not
such indemnification is against public policy as expressed in the Securities Act
of 1933 and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Louisville
and State of Kentucky, on the 4th day of October, 1996.
COMMONWEALTH ALUMINUM CORPORATION
By: /s/ MARK V. KAMINSKI
------------------------------------------
Mark V. Kaminski
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark V. Kaminski and Donald L. Marsh, Jr. and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the Registration Statement, and file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 4, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
/s/ PAUL E. LEGO Chairman of the Board
-------------------------------------------
Paul E. Lego
/s/ MARK V. KAMINSKI President, Chief Executive Officer and Director
------------------------------------------- (Principal Executive Officer)
Mark V. Kaminski
/s/ DONALD L. MARSH, JR. Chief Financial Officer, Executive Vice President Finance
------------------------------------------- and Secretary (Principal Financial Officer)
Donald L. Marsh, Jr.
/s/ GREGORY A. HANN Controller (Principal Accounting Officer)
-------------------------------------------
Gregory A. Hann
/s/ CATHERINE G. BURKE Director
-------------------------------------------
Catherine G. Burke
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
/s/ JOHN E. MEROW Director
-------------------------------------------
John E. Merow
/s/ VICTOR TORASSO Director
-------------------------------------------
Victor Torasso
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. DESCRIPTION NO.
- --------- ---------------------------------------------------------------------------------------- ---------
<S> <C> <C>
4.1 --Registration Rights Agreement, dated September 20, 1996, between the Company and
Morgan Stanley & Co. Incorporated and NatWest Capital Markets Limited.
4.2 --Indenture dated as of September 20, 1996 between the Company, the Subsidiary
Guarantors named therein and Harris Trust and Savings Bank, Trustee.
4.3 --Form of 10 3/4% Senior Subordinated Note Due 2006 (included in Exhibit 4.2).
5 --Opinion of Sullivan & Cromwell.
10.1 --Credit Agreement dated as of September 20, 1996 among the Company, certain
subsidiaries of the Company, the lenders party thereto and National Westminster Bank
Plc, as agent for such lenders.
12 --Computation of ratio of earnings to fixed charges.
23.1 --Consent of Coopers & Lybrand LLP.
23.2 --Consent of Ernst & Young LLP.
23.3 --Consent of Sullivan & Cromwell (included in Exhibit 5).
24 --Powers of Attorney (included on pages II-3 and II-4 hereof).
25 --Statement of Eligibility of Harris Trust and Savings Bank, Trustee.
99.1 --Form of Letter of Transmittal.
99.2 --Form of Notice of Guaranteed Delivery.
</TABLE>
<PAGE>
EXHIBIT 4.1
CONFORMED COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of September 20, 1996
by and among
COMMONWEALTH ALUMINUM CORPORATION
and
MORGAN STANLEY & CO. INCORPORATED
and
NATWEST CAPITAL MARKETS LIMITED
_________________________________
10 3/4% Senior Subordinated Notes Due 2006
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of September 20, 1996, by and among Commonwealth Aluminum
Corporation, a Delaware corporation (the "Company"), Morgan Stanley & Co.
Incorporated and Natwest Capital Markets Limited (the "Purchasers").
This Agreement is made pursuant to the Placement Agreement dated
September 16, 1996 (the "Placement Agreement") between the Company and the
Purchasers which provides for the sale by the Company to the Purchasers of
$125,000,000 aggregate principal amount of the Company's 10 3/4% Senior
Subordinated Notes Due 2006 (the "Notes"). In order to induce the Purchasers to
enter into the Placement Agreement and purchase the Notes, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the purchase of the Notes under
the Placement Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Placement Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"BUSINESS DAY" means any day except (i) a Saturday, Sunday or other
day in The City of New York on which banks are required or authorized to close
or (ii) any other day on which the Commission is closed.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the first paragraph of this
Agreement and also includes the Company's successors.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" means 10 3/4% Senior Subordinated Notes Due 2006
issued by the Company under the Indenture and containing terms identical to the
Notes (except that (i) interest thereon shall accrue from the last date on which
interest was paid on the Notes or, if no such interest has been paid, from
September 20, 1996, (ii) the Exchange Notes will not contain restrictions on
transfer, and (iii) the
<PAGE>
Exchange Notes will not contain provisions relating to an increase in their
interest rate under certain circumstances) to be offered to Holders of Notes
pursuant to the Exchange Offer.
"EXCHANGE OFFER" means the exchange offer by the Company of Exchange
Notes for Registrable Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" means a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" means an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) pursuant to the provisions of Section 2(a) of this Agreement which covers
all of the Exchange Notes and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference
therein.
"HOLDER" means each of the Purchasers, for so long as they own any
Registrable Notes, and each of their successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture; PROVIDED that for purposes of Sections 4 and 6 of this Agreement, the
term "Holder" shall include Participating Broker-Dealers as defined in Section
4(a).
"INDENTURE" means the Indenture relating to the Notes dated as of
September 20, 1996 among the Company, certain subsidiaries of the Company, as
Guarantors and Harris Bank and Trust Company, as Trustee, as amended or
supplemented from time to time in accordance with the terms thereof.
"PERSON" means an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"PLACEMENT AGREEMENT" has the meaning set forth in the first paragraph
of this Agreement.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or supplement
thereto, with respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement or of the Exchange
Notes, as the case may be, and all other amendments and supplements to the
Prospectus, including post-effective amendments
2
<PAGE>
and all material incorporated by reference or deemed to be incorporated by
reference therein.
"PURCHASERS" has the meaning set forth in the first paragraph of this
Agreement.
"REGISTRABLE NOTES" means the Notes; PROVIDED that any Note shall
cease to be a Registrable Note upon the earlier to occur of (i) when a
Registration Statement with respect to such Note has been declared effective
under the Securities Act and such Note has been disposed of pursuant to such
Registration Statement, (ii) when such Note has become eligible for resale
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act, (iii) except with respect to any Note held by a
Holder described in clause (iii) of Section 2(b) hereof, an Exchange Offer has
been consummated, or (iv) such Notes shall cease to be outstanding.
"REGISTRATION EXPENSES" has the meaning set forth in Section 4 hereof.
"REGISTRATION STATEMENT" means any registration statement that covers
any of the Exchange Notes or Registrable Notes pursuant to the provisions of
this Agreement and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference or deemed to be incorporated by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"SHELF REGISTRATION" means a registration under the Securities Act
effected pursuant to Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement
on Form S-3 (or, if applicable, on another appropriate form) pursuant to the
provisions of Section 2(b) of this Agreement which covers all of the Registrable
Notes under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the Commission, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference
therein.
"SPECIAL COUNSEL" means Davis Polk & Wardwell, special counsel to the
Purchasers or such other special counsel as may be designated by the Holders of
a majority in aggregate principal amount of Registrable Notes outstanding.
3
<PAGE>
"TRUSTEE" means the trustee with respect to the Notes under the
Indenture.
2. REGISTRATION UNDER THE SECURITIES ACT
(a) EXCHANGE OFFER REGISTRATION. To the extent not prohibited by any
applicable law or applicable interpretation of the Staff of the Commission, the
Company shall use its reasonable best efforts to cause to be filed after the
Closing Date an Exchange Offer Registration Statement covering an offer by the
Company to the Holders to exchange all of the Registrable Notes (except
Registrable Notes held by the Purchasers and acquired directly from the Company
if the Purchasers are not permitted, pursuant to applicable law or any
applicable interpretation of the Staff of the Commission, to participate in the
Exchange Offer) for Exchange Notes and to have such Registration Statement
remain effective until the closing of the Exchange Offer. The Company shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the Commission and use its reasonable
best efforts to have the Exchange Offer consummated not later than April 1,
1997. The Company shall commence the Exchange Offer by mailing the related
exchange offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures required by applicable law or the Indenture:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Notes validly tendered will be accepted
for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of not less than 20 Business Days from the date such notice is first
mailed) (the "Exchange Dates");
(iii) that any Registrable Note entitled to be exchanged in the
Exchange Offer not tendered or tendered and validly withdrawn will remain
outstanding and continue to accrue interest (but not at any increased rate
provided for under certain circumstances in such Notes), but will not
retain any rights under this Agreement;
(iv) that each Holder electing to have a Registrable Note
exchanged pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with letters of transmittal, to the institution
and at the address (located in the Borough of Manhattan, The City of New
York) specified in the notice prior to the close of business on the last
Exchange Date; and
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(v) that each Holder will be entitled to withdraw its election
not later than the close of business on the last Exchange Date, by sending
to the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Notes delivered for exchange and a statement that
such Holder is withdrawing its election to have such Registrable Notes
exchanged.
As soon as reasonably practicable after the last Exchange Date, the
Company shall:
(i) accept for exchange Registrable Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, Exchange Notes equal in principal
amount to the principal amount of the Registrable Notes surrendered by such
Holder.
The Company shall use its reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than (i) that the Exchange Offer does
not violate applicable law or any applicable interpretation of the Staff of the
Commission, (ii) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency or body with
respect to the Exchange Offer, (iii) that there shall not have been adopted or
enacted any law, statute, rule or regulation that would render the Exchange
Offer illegal, and (iv) such other conditions as may be reasonably acceptable to
the Purchasers which, in the Company's judgement, would reasonably be expected
to impair the ability of the Company to proceed with the Exchange Offer.
(b) SHELF REGISTRATIONS. In the event that (i) the Company
determines that the Exchange Offer Registration provided in Section 2(a) above
is not available or may not be consummated as soon as reasonably practicable
after the last Exchange Date, (ii) the Exchange Offer is not for any other
reason consummated by April 1, 1997 or (iii) the Exchange Offer has been
completed, and within 60 days following the consummation of the Exchange Offer,
a Holder notifies the Company that in the opinion of Special Counsel a
Registration Statement must be filed and a Prospectus must be delivered by it
because (x) such Registrable Notes represent an unsold allotment of the
Registrable Notes purchased by the Purchasers from the Company, (y) such Holder
is a Participating Broker-Dealer, or (z) such Holder was
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otherwise not permitted to participate in the Exchange Offer, unless the Company
has previously done so, the Company shall use its reasonable best efforts to
cause to be filed as soon as reasonably practicable after such determination,
date or notice of such Special Counsel's opinion is given to the Company, as the
case may be, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Notes and to have such Shelf Registration
Statement declared effective by the Commission. The Company shall use its
reasonable best efforts to keep the Shelf Registration Statement continuously
effective for a period of three years from the Closing Date or such shorter
period which will terminate when all the Registrable Notes covered by the Shelf
Registration have been sold pursuant to the Shelf Registration Statement. The
Company shall also supplement or amend such Shelf Registration Statement if
required by the rules, regulations or instructions applicable to the
registration form used by the Company or if required by the Securities Act or by
any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder with respect to information relating to such
Holder, and to use reasonable efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable as soon as
thereafter reasonably practicable. The Company agrees to furnish to the Holders
of Registrable Notes copies of any such supplement or amendment promptly after
its being used or filed with the Commission.
(c) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the Commission; PROVIDED that, if, after it has been declared effective, the
offering of Registrable Notes pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume. In the event that either the
Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective on or prior to April 1, 1997, then the annual interest rate
borne by the Notes shall be increased by 0.5% beginning at such time. If either
such Exchange Offer is not consummated or such Shelf Registration Statement is
not declared effective on or prior to October 1, 1997, then the annual interest
rate borne by the Notes shall be increased by an additional 0.5% beginning at
such time. Upon consummation of such Exchange Offer or the effectiveness of
such Shelf Registration Statement, the interest borne by the Notes will revert
to the original rate.
(d) Without limiting the remedies available to the Purchasers and the
Holders, the Company acknowledges that any failure by the Company to comply with
its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Purchasers or the Holders for which there is
no adequate
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remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Purchasers or any
Holder may obtain such relief as may be required to specifically enforce the
Company's obligations under Sections 2(a) and 2(b) hereof.
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3. REGISTRATION PROCEDURES
(a) In connection with the obligations of the Company pursuant to
Sections 2(a) and 2(b) hereof, the Company shall:
(i) prepare and file with the Commission, within the applicable time
period specified in Section 2(a) and Section 2(b), a Registration Statement
or Registration Statements on the appropriate form under the Securities
Act, which form (A) shall be selected by the Company and (B) shall, in the
case of a Shelf Registration Statement, be available for the sale of the
Registrable Notes in accordance with the intended method or methods of
distribution as the Company is so advised of by the selling Holders thereof
and (C) shall comply as to form in all material respects with the
requirements of the applicable form and include (including through
incorporation by reference) all financial statements required by the
Commission to be filed therewith, and the Company shall use its reasonable
best efforts to cause each such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period and cause each Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented, to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Securities Act; and
to keep each Prospectus current during the period described under Section
4(3) and Rule 174 under the Securities Act that is applicable to
transactions by brokers or dealers with respect to the Registrable Notes or
Exchange Notes;
(iii) use its reasonable best efforts to register or qualify the
Exchange Notes or Registrable Notes for the exchange or offer and sale, as
the case may be, under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder covered by a Registration Statement
shall reasonably request in writing by the time the applicable Registration
Statement is declared effective by the Commission, keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective and do any and all other acts
and things which may be necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Notes or Exchange Notes owned by such Holder; PROVIDED that the Company
will not be required to (A) qualify as a foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(a)(iii), (B) take any action which would
subject it to general service of process in any such jurisdiction where it
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<PAGE>
is not then so subject or (C) take any action which would subject it to
taxation in any such jurisdiction where it is not then so subject;
(iv) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement and provide
prompt notice to each Holder or the Special Counsel of the withdrawal of
any such order;
(v) use its reasonable best efforts to obtain the consent or approval
of each United States governmental agency or authority, whether federal,
state or local, required to be obtained by the Company as may be necessary
to enable the Holders thereof to consummate the disposition of such
Registrable Notes or Exchange Notes and cooperate with each seller of
Registrable Notes in connection with any filings required to be made by
such seller with the National Association of Securities Dealers, Inc.;
(vi) provide a trustee for the Registrable Notes or Exchange Notes, as
the case may be, and cause the Indenture (or the indenture governing the
Exchange Notes, if any) to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA") not later than the effective date of any
registration; and in connection therewith, cooperate with the Trustee and
the Holders to effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the TIA
and execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the Commission to
enable such indenture to be so qualified in a timely manner;
(vii) comply with all applicable rules and regulations of the
Commission and, in the case of a Shelf Registration, make generally
available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act); no later than
45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year), commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement, which statement shall cover
said 12-month period;
(viii) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement; and
(ix) use its reasonable best efforts to cause the Exchange Notes or
Registrable Notes, as the case may be, to be rated by two nationally
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<PAGE>
recognized statistical rating organizations (as such term is defined in
Rule 436(g)(2) under the Securities Act) unless such Notes are already so
rated.
(b) In addition to the obligations set forth above in Section 3(a),
in the case of a Shelf Registration pursuant to Section 2(b) hereof, the Company
shall as expeditiously as possible:
(i) notify each Holder of Registrable Notes and the Special Counsel
promptly, and (if requested by any such Person) confirm such notice in
writing, (A) when a Prospectus, any Prospectus supplement, a Registration
Statement or post-effective amendment related to such Registrable Notes has
been filed, and, with respect to a Registration Statement or any post-
effective amendment related to such Registrable Notes, when the same has
become effective, (B) of any request by the Commission or any federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(C) of the issuance by the Commission or any federal or state governmental
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (D) if, between the effective date of a Registration Statement and
the closing of any sale of Registrable Notes covered thereby, the
representations and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the Registrable
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (F) of the existence of any fact or happening
of any event during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or which requires the
making of any changes in a Registration Statement or related Prospectus in
order that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and that, in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and (G) of the Company's determination that a post-
effective amendment to a Registration Statement would be appropriate;
(ii) if reasonably requested by any Holder of Registrable Notes
covered by a Registration Statement, (A) incorporate in a Prospectus
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<PAGE>
supplement or post-effective amendment to a Registration Statement such
information as such Holder reasonably requests to be included therein, (B)
make all required filings of such Prospectus supplement or such post-
effective amendment as soon as reasonably practicable after the Company has
received notification of the matters to be incorporated in such filings and
(C) supplement or make amendments to any Registration Statement if
reasonably requested by any Holder of Registrable Notes covered by such
Registration Statement;
(iii) furnish to each Holder of Registrable Notes and the Special
Counsel and to each underwriter of an underwritten offering of Registrable
Notes, if any, without charge, at least one conformed copy of each
Registration Statement or Statements and any amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference or deemed incorporated therein by reference and all exhibits
(including those previously furnished or incorporated by reference), as
soon as reasonably practicable after the filing of such documents with the
Commission;
(iv) furnish to each Holder of Registrable Notes, the Special Counsel
and to each underwriter of an underwritten offering of Registrable Notes,
if any, without charge, as many copies of each Prospectus or Prospectuses
(including each preliminary Prospectus) and any amendment or supplement
thereto and such other documents as such Persons may reasonably request in
order to facilitate the public sale or other disposition of the Registrable
Notes; and the Company hereby consents to the use of such Prospectus or any
amendment or supplement thereto in accordance with applicable law by each
of the selling Holders of Registrable Notes and any such underwriter in
connection with the offering and sale of the Registrable Notes covered by
and in the manner described in such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(v) cooperate with the selling Holders of Registrable Notes to
facilitate the timely preparation and delivery of certificates representing
Registrable Notes to be sold, which certificates shall not bear any
restrictive legends; and enable such Registrable Notes to be in such
denominations and registered in such names, in all cases consistent with
the requirements set forth in the Indenture, as the Holders may request at
least two Business Days prior to the closing of any sale of Registrable
Notes;
(vi) a reasonable time prior to the filing of any Registration
Statement or Prospectus or any amendments or supplements thereto or any
document which is to be incorporated or deemed to be incorporated therein
by reference and amendments to such documents, provide copies of such
document to the Holders and the Special Counsel and make such of the
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<PAGE>
representatives of the Company as shall be reasonably requested by the
Holders or the Special Counsel available for discussion of such document,
and, except with respect to a Shelf Registration filed pursuant to Section
2(b) (iii), shall not at any time file or make any amendment to the
Registration Statement, any Prospectus or any amendment of or supplement to
a Registration Statement or a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus, of
which the Holders and the Special Counsel shall not have previously been
advised and furnished a copy or to which the Holders or the Special Counsel
shall reasonably object, except for any amendment or supplement or document
(a copy of which has been previously furnished to the Holders and the
Special Counsel) which counsel to the Company shall advise the Company in
writing is required in order to comply with applicable law; PROVIDED, that
the requirements of this paragraph shall not apply to the Company's Annual
Report on Form 10-K, its Quarterly Reports on Form 10-Q, its Current
Reports on Form 8-K or any other documents filed pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act (the "Exchange Act
Documents"); and PROVIDED, FURTHER, that the Company shall promptly notify
Holders of the filing of any Exchange Act Documents other than such
Exchange Act Documents specifically related to the offering of other
securities and not to the Registrable Notes;
(vii) upon becoming aware of the occurrence of any event
contemplated by paragraph 4(i)(F) or 4(i)(G) above, use its reasonable best
efforts to, as promptly as practicable thereafter, prepare and file with
the Commission a post-effective amendment to the applicable Registration
Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document that
would be incorporated by reference into the Registration Statement so that
the Registration Statement shall not contain any untrue statement or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and so that the Prospectus will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Notes being sold thereunder, and, in the case of a post-
effective amendment to a Registration Statement, use its reasonable best
efforts to cause it to become effective as promptly as is practicable. The
Company agrees to notify the Holders or the Special Counsel to suspend use
of the Prospectus as promptly as practicable after becoming aware of the
occurrence of such an event, and the Holders hereby agree to suspend use of
the Prospectus upon receipt of such notice until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
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<PAGE>
(viii) enter into such customary agreements and take all such other
customary actions in connection therewith (including those reasonably
requested by the Holders of a majority of the Registrable Notes being sold)
as are reasonably required to expedite or facilitate the disposition of
such Registrable Notes including, but not limited to, an underwritten
offering and in connection therewith, (A) to the extent reasonably
practicable, make such representations and warranties to the Holders and
any underwriters of such Registrable Notes with respect to the business of
the Company and its subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (B) obtain opinions of counsel to
the Company and updates thereof addressed to the selling Holder and
underwriter of Registrable Notes, covering the matters customarily covered
in opinions requested in underwritten offerings, (C) obtain "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or of any business acquired or
to be acquired by the Company for which financial statements and financial
data is or is required to be included in the Registration Statement)
addressed to the selling Holder and underwriter of Registrable Notes, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and (D) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in principal
amount of the Registrable Notes being sold and the Special Counsel to
evidence the continued validity of the representations and warranties of
the Company made pursuant to clause (A) above and to evidence compliance
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company. The above shall be done at
each closing under such underwriting or similar agreement as and to the
extent required thereunder;
(ix) upon reasonable notice, make available for inspection by a
representative of the Holders of Registrable Notes, Special Counsel, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney and accountant designated by such
selling Holders or underwriters, at reasonable times and in a reasonable
manner, all financial and other records, pertinent documents and properties
of the Company and its subsidiaries and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such disposition; PROVIDED that, such
underwriters shall be nationally recognized investment banking firms, and
such underwriters, attorneys or accountants shall agree to enter into a
written confidentiality agreement reasonably
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acceptable to the Company regarding any records, information or documents,
unless (A) such records, information or documents are in the public domain
or otherwise publicly available, (B) disclosure of such records,
information or documents is required by court or administrative order after
exhaustion of all appeals therefrom, (C) disclosure of such records,
information or documents, in the written opinion of counsel to such person,
is otherwise required by law (including, without limitation, pursuant to
the requirements of the Securities Act), (D) disclosure of such records,
information or document is necessary to avoid or correct a misstatement or
omission in the Registration Statement, Prospectus supplement or any post-
effective amendment or (E) any required consents are obtained; and
(x) use its reasonable best efforts to cause all Registrable Notes to
be listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed if requested
by the Holders of a majority in aggregate principal amount, to the extent
such Registrable Notes satisfy applicable listing requirements.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Notes to furnish to the Company such information
regarding the Holder and the distribution of such Registrable Notes by such
Holder as the Company may from time to time reasonably request in writing. Each
Holder of Registrable Notes as to which any registration is being effected will
be required to notify the Company as promptly as practicable of any inaccuracy
or change in information previously furnished by such Holder to the Company
pursuant to Section 2 to the Company or of the happening of any event, in either
case as a result of which any Prospectus relating to such registration contains
an untrue statement of a material fact regarding such Holder or the distribution
of such Registrable Notes required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and to furnish to the Company promptly any additional
information required to correct and update any previously furnished information
or required such that such Prospectus shall not contain, with respect to such
Holder or the distribution of such Registrable Notes, an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any (i) notice from the Company of the happening of any
event of the kind described in Section 3(b)(i)(F) or 3(b)(i)(G) hereof, (ii)
notice from the Company that it is in possession of material information that
has not been disclosed to the public and the Company reasonably deems it
to be advisable not to disclose such information in a registration statement or
(iii) notice from the Company that it is in the process of a registered offering
of securities and the Company reasonably deems it
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<PAGE>
to be advisable to temporarily discontinue disposition of Registrable Notes
pursuant to the Shelf Registration Statement (in each case, such notice being
hereinafter referred to as a "Suspension Notice"), such Holder will forthwith
discontinue disposition of Registrable Notes pursuant to any Shelf
Registration Statement and shall not be entitled to the benefits provided
under Section 6 hereof with respect to any sales made by it in contravention
of this paragraph, until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(b)(vi) hereof or
a notice that any order suspending the effectiveness of the Shelf
Registration Statement has been withdrawn, or, in the case of (ii) or (iii)
above, until further notice from the Company that disposition of Registrable
Notes may resume, provided that (except with respect to a Shelf Registration
filed pursuant to Section 2(b) (iii)) such further notice will be given
within 90 days of the Suspension Notice in the case of (ii) above and within
120 days of the Suspension Notice in the case of (iii) above, and provided
further that in the case of (ii) and (iii) above that any Suspension Notice
must be based upon a good faith determination of the Board of Directors of
the Company that such Suspension Notice is necessary; and, if so directed by
the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable
Notes current at the time of receipt of such notice. If the Company shall
give any Suspension Notice relating to the disposition of Registrable Notes
pursuant to any Shelf Registration Statement, the Company shall extend the
period during which such Shelf Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such Notice to and including the
date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions or received such
Notice that any order suspending dispositions of the Notes has been
withdrawn. Notwithstanding the foregoing, in the case of clauses (ii) or
(iii) above, the Company may not deliver a Suspension Notice if a period of
90 days in the case of (ii) above and 120 days in the case of (iii) above has
not elapsed since the termination of any prior period during which a
Suspension Notice was in effect.
4. PARTICIPATION OF BROKER-DEALERS IN EXCHANGE OFFER
(a) The Staff of the Commission has taken the position that any
broker-dealer that receives Exchange Notes for its own account in the Exchange
Offer in exchange for Notes that were acquired by such broker-dealer as a result
of market-making or other trading activities (a "Participating Broker-Dealer"),
may be deemed to be an "underwriter" within the meaning of the Securities Act
and must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of
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distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligation under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Purchasers or by one or more Participating
Broker-Dealers, in each case as provided in clause (ii) below, in order to
expedite or facilitate the disposition of any Exchange Notes by Participating
Broker-Dealers consistent with the positions of the Staff of the Commission
recited in Section 4(a) above; PROVIDED that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(b)(vi), for a period exceeding 90
days after the last Exchange Date (as such period may be extended pursuant
to the last paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with resales
contemplated by this Section 4; and
(ii) in connection with such application of the Shelf Registration
procedures set forth in Section 3 to an Exchange Offer Registration, the
Company shall be obligated (A) to deal only with one entity representing
the Participating Broker-Dealers, which shall be Morgan Stanley & Co.
Incorporated unless it elects not to act as such representative, (B) to pay
the fees and expense of only one counsel representing the Participating
Broker-Dealers, which shall be the Special Counsel unless such counsel
elects not to so act and (C) to cause to be delivered only one, if any,
"cold comfort" letter or set of letters, as the case may be, with respect
to the Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above; PROVIDED, that the provisions of
clauses (B) and (C) of this Section 4(b)(ii) shall apply only if one or
more Participating Broker-Dealers holding at least $5,000,000 in aggregate
principal amount of Registrable Notes shall request that the provisions of
this Agreement as they relate to a Shelf Registration also apply to an
Exchange Offer Registration Statement for the disposition of Exchange Notes
by Participating Broker-Dealers.
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5. REGISTRATION EXPENSES
The Company shall pay all fees and expenses incident to the
performance of or compliance with this Agreement by the Company including,
without limitation, (i) all Commission, stock exchange or National Association
of Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualification of any of the Exchange Notes or Registrable Notes),
(iii) all expenses of any Persons acting on behalf of the Company in preparing
or assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vi) the reasonable fees and
disbursements of the Trustee (including the reasonable fees and disbursements of
its counsel), (vii) the fees and disbursements of counsel for the Company, the
Special Counsel (in the case of a Shelf Registration Statement) and of the
independent public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees of counsel to the underwriters or
the Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Notes by a Holder.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless the Purchasers
and each Holder and each person, if any, who controls the Purchasers or any
Holder within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended and supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Purchasers or any Holder, or requested in
writing to be included by any Holder pursuant to Section 2, furnished to the
Company in writing by the Purchasers or any Holder expressly for use therein.
The Company also agrees to indemnify any underwriters of the Registrable Notes,
their officers and directors and each Person
17
<PAGE>
who controls such underwriters on substantially the same basis as that of the
indemnification of the Purchasers and the Holders provided in this Section 6.
(b) In connection with any Shelf Registration in which a Holder is
participating, in furnishing information relating to such Holder, or requested
in writing to be included by any Holder pursuant to Section 2, to the Company in
writing expressly for use in such Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto, the Holders
agree severally and not jointly, to indemnify and hold harmless the Purchasers
and each person, if any, who controls the Purchasers within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act and
the Company, its directors, its officers who sign a Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference
to such information relating to such Holder, or requested in writing to be
included by any Holder pursuant to Section 2, furnished in writing by or on
behalf of such Holder expressly for use in such Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) The Purchasers agree, severally and not jointly, to indemnify and
hold harmless the Company, the Holders, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person, if
any, who controls the Company or any Holder within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference
to information relating to the Purchasers, or requested in writing to be
included by any Purchaser pursuant to Section 2,
18
<PAGE>
furnished to the Company in writing expressly for use in such Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to the actual or
potential differing interest between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the
Purchasers and all persons, if any, who control the Purchasers within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (ii) the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all persons, if any, who
control any Holders within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and that all such fees and expenses shall
be reimbursed as they are incurred. In such case involving the Purchasers and
such control persons of the Purchasers, such firm shall be designated in writing
by Morgan Stanley & Co. Incorporated. In such case involving the Holders and
such controlling persons of Holders, such firm shall be designated in writing by
Holders of a majority in aggregate principal amount of Registrable Notes. In
all other cases, such firm shall be designated by the Company. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement
19
<PAGE>
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) If the indemnification provided for in the first, second or third
paragraphs of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
Holders on the one hand and of the Company on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Holders or by the Company
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 6(e) are several
in proportion to the respective number of Registrable Notes of such Holder that
were registered pursuant to a Registration Statement.
(f) The parties hereto agree that it would not be just or equitable
if contribution pursuant to this Section 6 were determined by PRO RATA
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, an indemnifying party that is
a Holder shall not be required to indemnify or contribute any amount in excess
of the amount by which the total price at which the Registrable Notes sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any
20
<PAGE>
indemnified party at law or in equity. The provisions of this Section 6 shall
survive so long as Registrable Notes remain outstanding, notwithstanding any
transfer of the Registrable Notes by any Holder or any termination of this
Agreement.
(g) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Purchasers or any person controlling the Purchasers, any Holder or any
person controlling the Holder, or the Company, its officers or directors or any
person controlling the Company, and (iii) the sale of any Registrable Notes by
any Holder.
7. SELECTION OF UNDERWRITERS
The Holders of Registrable Notes covered by the Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an underwritten
offering. In any such underwritten offering, the investment banker or
investment bankers and manager or managers (the "underwriters") that will
administer the offering will be selected by the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes included in such
offering; PROVIDED that such underwriters must be nationally recognized
investment banking firms.
8. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, they shall waive the defense
that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, and shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holders in this Agreement. The Company represents and warrants
that the rights granted to the Holders hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding aggregate principal amount of Registrable
Notes
21
<PAGE>
affected by such amendment, modification, supplement, waiver or departure;
PROVIDED, HOWEVER, no amendment, modification or supplement, waiver or consent
with respect to the provisions of Section 6 hereof shall be effective as against
any Holder of Registrable Notes unless consented to in writing by such Holder.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter which relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration Statement and
which does not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold by such Holders; provided, that the provisions of
this sentence may not be amended, modified, or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier or any courier guaranteeing overnight delivery :
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
7(d), which address initially is, with respect to the Purchasers as
follows:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: General Counsel
Legal Department
Natwest Capital Markets Limited
660 Madison Avenue
New York, New York 10021
Attention: Roger W. Hoit
(ii) if to the Company, initially at its address as follows:
Commonwealth Aluminum Corporation
Meidinger Tower
462 South 4th Avenue, Suite 1200
Louisville, Kentucky 40202-3474
Attention: Donald L. Marsh, Jr.
and thereafter by such other address, notice of which is given in accordance
with the provision of this Section 7(d); and
22
<PAGE>
(iii) if to Special Counsel, initially at its address as
follows:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Richard Truesdell, Jr.
and thereafter by such other address, notice of which is given in accordance
with the provision of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; two business days after
being deposited in the mail, postage prepaid, if mailed; the next business day
if timely delivered to an air courier guaranteeing overnight delivery; when
answered back, if telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their reasonable best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
23
<PAGE>
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. Except as provided in the
Placement Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company with respect to the securities
sold pursuant to the Placement Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
24
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMMONWEALTH ALUMINUM CORPORATION
By: /s/ Donald L. Marsh
---------------------------
Name: Donald L. Marsh
Title: Vice President
MORGAN STANLEY & CO. INCORPORATED
NATWEST CAPITAL MARKETS LIMITED
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Jonathan G. Morphett
--------------------------
Name: Jonathan G. Morphett
Title: Principal
25
`
<PAGE>
EXHIBIT 4.2
_______________________________________________________________________________
COMMONWEALTH ALUMINUM CORPORATION
AND
THE SUBSIDIARY GUARANTORS NAMED HEREIN
TO
HARRIS TRUST AND SAVINGS BANK
TRUSTEE
________________
Indenture
Dated as of September 20, 1996
________________
$125,000,000
10-3/4% Senior Subordinated Notes Due 2006
_______________________________________________________________________________
<PAGE>
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of September 20, 1996
Trust Indenture Indenture
Act Section Section
- ---------------- --------------
Section 310(a)(1)................................... 609
(a)(2) ..................................... 609
(a)(3) ..................................... Not
Applicable
(a)(4) ..................................... Not
Applicable
(b) ..................................... 608
610
Section 311(a) ..................................... 613
(b) ..................................... 613
Section 312(a) ..................................... 701
702(a)
(b) ..................................... 702(b)
(c) ..................................... 702(c)
Section 313(a) ..................................... 703(a)
(b) ..................................... 703(a)
(c) ..................................... 703(a)
(d) ..................................... 703(b)
Section 314(a) ..................................... 704
(a)(4) ..................................... 101
1004
(b) ..................................... Not
Applicable
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(c)(3) ..................................... Not
Applicable
(d) ..................................... Not
Applicable
(e) ..................................... 102
Section 315(a) ..................................... 601
(b) ..................................... 602
(c) ..................................... 601
(d) ..................................... 601
(e) ..................................... 514
__________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
-i-
<PAGE>
Trust Indenture Indenture
Act Section Section
- ---------------- --------------
Section 316(a) ..................................... 101
(a)(1)(A) ..................................... 502
512
(a)(1)(B) ..................................... 513
(a)(2) ..................................... Not
Applicable
(b) ..................................... 508
(c) ..................................... 104
Section 317(a)(1)................................... 503
(a)(2) ..................................... 504
(b) ..................................... 1003
Section 318(a) ..................................... 107
__________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
Page
----
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company and Subsidiary Guarantors. . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions:
Acceleration Notice. . . . . . . . . . . . . . . . . . . . . . . 2
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Acquired Indebtedness. . . . . . . . . . . . . . . . . . . . . . 2
Additional Interest. . . . . . . . . . . . . . . . . . . . . . . 2
Adjusted Consolidated Net Income . . . . . . . . . . . . . . . . 3
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . 3
Agent Members. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Aluminum Business. . . . . . . . . . . . . . . . . . . . . . . . 3
Asset Acquisition. . . . . . . . . . . . . . . . . . . . . . . . 4
Asset Disposition. . . . . . . . . . . . . . . . . . . . . . . . 4
Attributable Indebtedness . . . . . . . . . . . . . . . . . . . 5
Average Life . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Blockage Notice. . . . . . . . . . . . . . . . . . . . . . . . . 5
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 5
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 5
Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . 5
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Capital Stock. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Capitalized Lease; Capitalized Lease
Obligation. . . . . . . . . . . . . . . . . . . . . . . . . 6
Change of Control. . . . . . . . . . . . . . . . . . . . . . . . 6
Change of Control Payment. . . . . . . . . . . . . . . . . . . . 6
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Company Request; Company Order . . . . . . . . . . . . . . . . . 7
Consolidated Current Liabilities . . . . . . . . . . . . . . . . 7
Consolidated EBITDA. . . . . . . . . . . . . . . . . . . . . . . 7
Consolidated Fixed Charge
Coverage Ratio. . . . . . . . . . . . . . . . . . . . . . . . 8
Consolidated Fixed Charges . . . . . . . . . . . . . . . . . . . 9
Consolidated Interest Expense. . . . . . . . . . . . . . . . . . 9
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . 10
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 10
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
<PAGE>
Page
----
corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . 10
Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . 11
Currency Agreement . . . . . . . . . . . . . . . . . . . . . . . 11
Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 11
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Designated Senior Indebtedness . . . . . . . . . . . . . . . . . 11
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 11
Excess Funding Guarantor . . . . . . . . . . . . . . . . . . . . 11
Excess Payment . . . . . . . . . . . . . . . . . . . . . . . . . 12
Excess Proceeds Payment. . . . . . . . . . . . . . . . . . . . . 12
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . 12
Exchange Offer Registration
Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Exchange Security. . . . . . . . . . . . . . . . . . . . . . . . 12
Expiration Date. . . . . . . . . . . . . . . . . . . . . . . . . 12
Fair Market Value. . . . . . . . . . . . . . . . . . . . . . . . 12
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Global Securities. . . . . . . . . . . . . . . . . . . . . . . . 12
Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Hedging Obligations. . . . . . . . . . . . . . . . . . . . . . . 13
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Immaterial Subsidiary. . . . . . . . . . . . . . . . . . . . . . 13
Incur. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . . 14
Interest Rate Agreement. . . . . . . . . . . . . . . . . . . . . 14
Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Investment Company Act . . . . . . . . . . . . . . . . . . . . . 15
Investment Grade Rating. . . . . . . . . . . . . . . . . . . . . 15
Issue Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Line of Business . . . . . . . . . . . . . . . . . . . . . . . . 16
Materials Hedging Contract . . . . . . . . . . . . . . . . . . . 16
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Moody's. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Net Cash Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 16
Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . 16
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-ii-
<PAGE>
Page
----
Offer to Purchase. . . . . . . . . . . . . . . . . . . . . . . . 17
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . . 19
Offshore Global Security . . . . . . . . . . . . . . . . . . . . 19
Offshore Physical Securities . . . . . . . . . . . . . . . . . . 19
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 19
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Payment Blockage Period. . . . . . . . . . . . . . . . . . . . . 21
Permitted Business Venture . . . . . . . . . . . . . . . . . . . 21
Permitted Indebtedness . . . . . . . . . . . . . . . . . . . . . 21
Permitted Liens. . . . . . . . . . . . . . . . . . . . . . . . . 21
Permitted Receivables Financing. . . . . . . . . . . . . . . . . 23
Permitted Refinancing Indebtedness . . . . . . . . . . . . . . . 23
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Physical Securities. . . . . . . . . . . . . . . . . . . . . . . 23
Plan of Merger . . . . . . . . . . . . . . . . . . . . . . . . . 23
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 23
Preferred Stock. . . . . . . . . . . . . . . . . . . . . . . . . 24
Private Placement Legend . . . . . . . . . . . . . . . . . . . . 24
Pro Rata Payment . . . . . . . . . . . . . . . . . . . . . . . . 24
Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Public Equity Offering . . . . . . . . . . . . . . . . . . . . . 24
Purchase Amount. . . . . . . . . . . . . . . . . . . . . . . . . 24
Purchase Date. . . . . . . . . . . . . . . . . . . . . . . . . . 24
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . 24
QIB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Receivables and Related Assets . . . . . . . . . . . . . . . . . 24
Record Expiration Date . . . . . . . . . . . . . . . . . . . . . 24
Redeemable Stock . . . . . . . . . . . . . . . . . . . . . . . . 24
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . 25
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 25
Registration Default . . . . . . . . . . . . . . . . . . . . . . 25
Registration Rights Agreement. . . . . . . . . . . . . . . . . . 25
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . . 25
Reorganization . . . . . . . . . . . . . . . . . . . . . . . . . 25
Representative . . . . . . . . . . . . . . . . . . . . . . . . . 26
Resale Registration Statement. . . . . . . . . . . . . . . . . . 26
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . . 26
Restricted Investment. . . . . . . . . . . . . . . . . . . . . . 26
Restricted Payment . . . . . . . . . . . . . . . . . . . . . . . 27
Restricted Subsidiary. . . . . . . . . . . . . . . . . . . . . . 27
Revolving Loan Facility. . . . . . . . . . . . . . . . . . . . . 27
Rule 144A Securities . . . . . . . . . . . . . . . . . . . . . . 27
Sale/Leaseback Transaction . . . . . . . . . . . . . . . . . . . 27
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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Secured Indebtedness . . . . . . . . . . . . . . . . . . . . . . 27
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . 28
Securities Payment . . . . . . . . . . . . . . . . . . . . . . . 28
Securitization Subsidiary. . . . . . . . . . . . . . . . . . . . 28
Security Register; Security Registrar. . . . . . . . . . . . . . 28
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 28
Senior Nonmonetary Default . . . . . . . . . . . . . . . . . . . 29
Senior Payment Default . . . . . . . . . . . . . . . . . . . . . 29
Senior Subordinated Indebtedness . . . . . . . . . . . . . . . . 29
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . 29
S&P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Special Record Date. . . . . . . . . . . . . . . . . . . . . . . 29
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . . 29
Step-Up. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Step-Down Date . . . . . . . . . . . . . . . . . . . . . . . . . 30
Stockholder Protection Rights Agreement;
Stock Purchase Rights. . . . . . . . . . . . . . . . . . . . . 30
Subordinated Indebtedness. . . . . . . . . . . . . . . . . . . . 30
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Subsidiary Guarantee Payment
Blockage Period. . . . . . . . . . . . . . . . . . . . . . . . 30
Subsidiary Guarantees. . . . . . . . . . . . . . . . . . . . . . 30
Subsidiary Guarantors. . . . . . . . . . . . . . . . . . . . . . 30
Subsidiary Guarantor Payment . . . . . . . . . . . . . . . . . . 31
Subsidiary Guarantor Proceeding. . . . . . . . . . . . . . . . . 31
Subsidiary Guarantor Senior
Nonmonetary Default . . . . . . . . . . . . . . . . . . . . . 31
Subsidiary Guarantor Senior
Payment Default. . . . . . . . . . . . . . . . . . . . . . . . 31
Term Loan Facility . . . . . . . . . . . . . . . . . . . . . . . 31
Transaction Date . . . . . . . . . . . . . . . . . . . . . . . . 31
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . 31
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
U.S. Global Securities . . . . . . . . . . . . . . . . . . . . . 31
U.S. Government Obligation . . . . . . . . . . . . . . . . . . . 31
U.S. Physical Securities . . . . . . . . . . . . . . . . . . . . 32
Unrestricted Subsidiary . . . . . . . . . . . . . . . . . . . . 32
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . 33
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Wholly Owned . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 102. Compliance Certificates and
Opinions. . . . . . . . . . . . . . . . . . . . . . . 33
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 103. Form of Documents
Delivered to Trustee. . . . . . . . . . . . . . . . . 34
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . . . . . 35
SECTION 105. Notices, Etc., to Trustee, Company
and Subsidiary Guarantors . . . . . . . . . . . . . . 37
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . 38
SECTION 107. Application of Trust Indenture Act. . . . . . . . . . . 38
SECTION 108. Effect of Headings and
Table of Contents. . . . . . . . . . . . . . . . . . . 39
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . 39
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . 39
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . 39
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . 39
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . 40
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . 41
SECTION 203. Form of Reverse of Security. . . . . . . . . . . . . . . 46
SECTION 204. Form of Trustee's
Certificate of Authentication. . . . . . . . . . . . . 53
SECTION 205. Form of Subsidiary Guarantee . . . . . . . . . . . . . . 53
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE THREE
The Securities
SECTION 301. Title and Terms. . . . . . . . . . . . . . . . . . . . . 58
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 303. Execution, Authentication,
Delivery and Dating. . . . . . . . . . . . . . . . . . 59
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . 61
SECTION 305. Registration, Registration of
Transfer and Exchange. . . . . . . . . . . . . . . . . 62
SECTION 306. Mutilated, Destroyed,
Lost and Stolen Securities . . . . . . . . . . . . . . 63
SECTION 307. Payment of Interest;
Interest Rights Preserved . . . . . . . . . . . . . . 64
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . 66
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . 66
SECTION 311. Book-Entry Provisions for
Global Securities. . . . . . . . . . . . . . . . . . . 67
SECTION 312. Special Transfer Provisions. . . . . . . . . . . . . . . 69
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and
Discharge of Indenture . . . . . . . . . . . . . . . . 73
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . 74
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . 74
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . . . . . . 76
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee. . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . 78
SECTION 505. Trustee May Enforce Claims
Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 506. Application of Money Collected . . . . . . . . . . . . . 79
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . 80
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . 81
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . 81
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . 81
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . 82
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . 82
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . 82
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . 83
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . 83
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and
Responsibilities . . . . . . . . . . . . . . . . . . . 84
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . 84
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . 84
SECTION 604. Not Responsible for Recitals
or Issuance of Securities. . . . . . . . . . . . . . . 86
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . 86
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . 86
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . 86
SECTION 608. Disqualification; Conflicting
Interests. . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 609. Corporate Trustee Required;
Eligibility. . . . . . . . . . . . . . . . . . . . . . 87
SECTION 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . . . . . . . 88
SECTION 611. Acceptance of Appointment by
Successor. . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business. . . . . . . . . . . . . . . 90
SECTION 613. Preferential Collection of
Claims Against Company . . . . . . . . . . . . . . . . 90
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . 91
SECTION 702. Preservation of Information;
Communications to Holders. . . . . . . . . . . . . . . 91
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . 92
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . 92
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Consolidation, Merger and Sale of
Assets . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 802. Successor Substituted. . . . . . . . . . . . . . . . . . 94
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . 94
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . . . . . . . 95
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . 96
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . 97
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . 97
SECTION 906. Reference in Securities to
Supplemental Indentures. . . . . . . . . . . . . . . . 97
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 907. Notice of Supplemental Indentures. . . . . . . . . . . . 97
SECTION 908. Revocation and Effect of Consents. . . . . . . . . . . . 98
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . . . . . . . 98
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . 98
SECTION 1003. Money for Security Payments to
Be Held in Trust . . . . . . . . . . . . . . . . . . . 99
SECTION 1004. Statement by Officers as to
Default. . . . . . . . . . . . . . . . . . . . . . . . 100
SECTION 1005. Existence. . . . . . . . . . . . . . . . . . . . . . . . 101
SECTION 1006. Maintenance of Properties; Insurance . . . . . . . . . . 101
SECTION 1007. Payment of Taxes and Other Claims. . . . . . . . . . . . 102
SECTION 1008. Limitation on Indebtedness . . . . . . . . . . . . . . . 102
SECTION 1009. Limitation on Restricted Payments. . . . . . . . . . . . 106
SECTION 1010. Limitation on Dividends and other
Payment Restrictions Affecting
Restricted Subsidiaries. . . . . . . . . . . . . . . . 109
SECTION 1011. Limitation on Issuance of Capital
Stock of Restricted Subsidiaries . . . . . . . . . . . 110
SECTION 1012. Limitation on Asset Sales. . . . . . . . . . . . . . . . 111
SECTION 1013. Limitation on Transactions
with Stockholders and Affiliates . . . . . . . . . . . 113
SECTION 1014. Change of Control. . . . . . . . . . . . . . . . . . . . 114
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-x-
<PAGE>
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SECTION 1015. Provision of Financial Information . . . . . . . . . . . 115
SECTION 1016. Certain Positive Credit Events . . . . . . . . . . . . . 115
SECTION 1017. Waiver of Certain Covenants. . . . . . . . . . . . . . . 116
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption. . . . . . . . . . . . . . . . . . . 117
SECTION 1102. Applicability of Article . . . . . . . . . . . . . . . . 117
SECTION 1103. Election to Redeem; Notice
to Trustee . . . . . . . . . . . . . . . . . . . . . . 117
SECTION 1104. Selection by Trustee of
Securities to Be Redeemed . . . . . . . . . . . . . . 118
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . . . . . 118
SECTION 1106. Deposit of Redemption Price. . . . . . . . . . . . . . . 119
SECTION 1107. Securities Payable on
Redemption Date. . . . . . . . . . . . . . . . . . . . 119
SECTION 1108. Securities Redeemed in Part. . . . . . . . . . . . . . . 120
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 120
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . . . . . . . . . 120
SECTION 1203. No Payment When Senior
Indebtedness in Default. . . . . . . . . . . . . . . . 122
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-xi-
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SECTION 1204. Payment Permitted If No Default. . . . . . . . . . . . . 123
SECTION 1205. Subrogation to Rights of Holders
of Senior Indebtedness of the Company. . . . . . . . . 124
SECTION 1206. Provisions Solely to Define
Relative Rights. . . . . . . . . . . . . . . . . . . . 124
SECTION 1207. Trustee to Effectuate Subordination. . . . . . . . . . . 125
SECTION 1208. No Waiver of Subordination
Provisions . . . . . . . . . . . . . . . . . . . . . . 125
SECTION 1209. Notice to Trustee. . . . . . . . . . . . . . . . . . . . 126
SECTION 1210. Reliance on Judicial Order or
Certificate of Liquidating Agent . . . . . . . . . . . 127
SECTION 1211. Trustee Not Fiduciary for Holders
of Senior Indebtedness . . . . . . . . . . . . . . . . 127
SECTION 1212. Rights of Trustee as Holder of
Senior Indebtedness;
Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . . . . . 128
SECTION 1213. Article Applicable to Paying
Agents . . . . . . . . . . . . . . . . . . . . . . . . 128
SECTION 1214. Defeasance of this Article Twelve. . . . . . . . . . . . 128
SECTION 1215. Not to Prevent Events of Default . . . . . . . . . . . . 128
ARTICLE THIRTEEN
Subsidiary Guarantees
SECTION 1301. Subsidiary Guarantees. . . . . . . . . . . . . . . . . . 129
SECTION 1302. Execution and Delivery of Subsidiary
Guarantees . . . . . . . . . . . . . . . . . . . . . . 132
SECTION 1303. Additional Subsidiary Guarantors . . . . . . . . . . . . 132
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-xii-
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SECTION 1304. Release of Subsidiary Guarantors. . . . . . . . . . . . 133
SECTION 1305. Rights of Contribution. . . . . . . . . . . . . . . . . 134
ARTICLE FOURTEEN
Subordination of Subsidiary Guarantees
SECTION 1401. Subsidiary Guarantees Subordinate
to Senior Indebtedness of Subsidiary
Guarantors. . . . . . . . . . . . . . . . . . . . . . 135
SECTION 1402. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . . . . . . . . . 135
SECTION 1403. No Payment When Senior Indebtedness
of a Subsidiary Guarantor in
Default . . . . . . . . . . . . . . . . . . . . . . . 137
SECTION 1404. Payment Permitted If No Default . . . . . . . . . . . . 139
SECTION 1405. Subrogation to Rights of Holders
of Senior Indebtedness of a
Subsidiary Guarantor. . . . . . . . . . . . . . . . . 139
SECTION 1406. Provisions Solely to Define Relative
Rights. . . . . . . . . . . . . . . . . . . . . . . . 140
SECTION 1407. Trustee to Effectuate Subordination . . . . . . . . . . 140
SECTION 1408. No Waiver of Subordination Provisions . . . . . . . . . 141
SECTION 1409. Notice to Trustee . . . . . . . . . . . . . . . . . . . 141
SECTION 1410. Reliance on Judicial Order or
Certificate of Liquidating Agent. . . . . . . . . . . 142
SECTION 1411. Trustee Not Fiduciary for Holders
of Senior Indebtedness of the
Subsidiary Guarantors . . . . . . . . . . . . . . . . 143
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 1412. Rights of Trustee as Holder of
Senior Indebtedness of the
Subsidiary Guarantors; Preservation
of Trustee's Rights . . . . . . . . . . . . . . . . . 143
SECTION 1413. Article Applicable to Paying Agents . . . . . . . . . . 143
SECTION 1414. Defeasance of this Article Fourteen . . . . . . . . . . 144
SECTION 1415. Not to Prevent Events of Default. . . . . . . . . . . . 144
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
SECTION 1501. Company's Option to Effect Defeasance
or Covenant Defeasance . . . . . . . . . . . . . . . 144
SECTION 1502. Defeasance and Discharge . . . . . . . . . . . . . . . 144
SECTION 1503. Covenant Defeasance . . . . . . . . . . . . . . . . . . 145
SECTION 1504. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . . . 146
SECTION 1505. Deposited Moneys and U.S. Government
Obligations to Be Held in Trust;
Miscellaneous Provisions. . . . . . . . . . . . . . . 147
SECTION 1506. Reinstatement . . . . . . . . . . . . . . . . . . . . . 148
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . . . . . 149
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
__________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE>
INDENTURE, dated as of September 20, 1996, between COMMONWEALTH
ALUMINUM CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at Meidinger Tower, 462 S. 4th Avenue, Suite 1200,
Louisville, Kentucky 40202-3474, each of the SUBSIDIARY GUARANTORS (as
hereinafter defined) and HARRIS TRUST AND SAVINGS BANK, a banking corporation
duly organized and existing under the laws of Illinois, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY AND SUBSIDIARY GUARANTORS
The Company has duly authorized the creation of an issue of its
10-3/4% Senior Subordinated Notes Due 2006 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth,
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
The Company and the Subsidiary Guarantors are members of the same
consolidated group of companies and are engaged in related businesses; the
Subsidiary Guarantors will derive direct and indirect economic benefit from
the issuance of the Securities; accordingly, the Subsidiary Guarantors have
each duly authorized the execution and delivery of this Indenture to provide
for the Guarantee by each of them with respect to the Securities as set forth
in this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, to make the Guarantees of each
of the Subsidiary Guarantors, when executed by the respective Subsidiary
Guarantors and endorsed on the Securities authenticated and delivered
hereunder, the valid obligations of the respective Subsidiary Guarantors, and
to make this Indenture a valid agreement of the Company and each of the
Subsidiary Guarantors, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
<PAGE>
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP.
"Acceleration Notice" has the meaning specified in Section 502.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person merged with or into or became a Restricted Subsidiary and not
Incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary.
"Additional Interest" has the meaning specified in the form of
Securities set forth in Section 202.
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"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of the Company and its consolidated Restricted
Subsidiaries for such period determined in conformity with GAAP; PROVIDED that
the following items shall be excluded in computing Adjusted Consolidated Net
Income (without duplication): (i) the net income of any Person that is not a
Restricted Subsidiary, except to the extent of the amount of dividends or other
distributions that are actually paid in cash to the Company or any of its
Restricted Subsidiaries by such Person during such period; (ii) solely for the
purposes of calculating the amount of Restricted Payments that may be made
pursuant to clause (C) of the first paragraph of Section 1009 (and in such case,
except to the extent includable pursuant to clause (i) above), the net income
(or loss) of any Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with the Company or any of its
Restricted Subsidiaries or all or substantially all of the property and assets
of such Person are acquired by the Company or any of its Restricted
Subsidiaries; (iii) the net income of any Restricted Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not permitted at such time by its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary; (iv) any net
after-tax gains or losses attributable to Asset Dispositions; (v) any net after-
tax extraordinary gains or extraordinary losses; and (vi) the cumulative effect
of a change in accounting principles.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent Members" has the meaning specified in Section 311.
"Aluminum Business" means the business of developing, manufacturing,
producing, marketing, transporting and selling aluminum, aluminum products and
electrical wiring products, including, without limitation, flexible conduit and
pre-wired armored cable, and any other business incidental thereto.
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"Asset Acquisition" means (i) an Investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries or (ii) an acquisition by
the Company or any of its Restricted Subsidiaries of the property and assets of
any Person other than the Company or any of its Restricted Subsidiaries that
constitute substantially all of a Line of Business of such Person.
"Asset Disposition" means any sale, lease, transfer or other
disposition by the Company or any Restricted Subsidiary (or series of related
sales, leases, transfers or dispositions), including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition") of all or any of its property or
assets (including, without limitation, the Capital Stock of any Restricted
Subsidiary); PROVIDED that the following shall not be included in the definition
of "Asset Disposition":
(i) any disposition by the Company or any Restricted Subsidiary
of any or all of its property or assets (upon voluntary liquidation or
otherwise) to the Company or a Wholly Owned Restricted Subsidiary;
(ii) any disposition by the Company or any Restricted Subsidiary
in the ordinary course of business of property or assets acquired and
held for resale in the ordinary course of business;
(iii) any disposition of property or assets of the Company or any
Restricted Subsidiary pursuant to and in accordance with the
provisions set forth in Article Eight;
(iv) any disposition by the Company or any Restricted Subsidiary
of damaged, worn out or other obsolete property or assets in the
ordinary course of business;
(v) any transfer by the Company or any Restricted Subsidiary of
any Capital Stock of any Restricted Subsidiary to the Company or any
Wholly Owned Restricted Subsidiary;
(vi) any disposition or series of related dispositions involving
assets having a Fair Market Value of $1.0 million or less; PROVIDED,
that such
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disposition or series of related dispositions is effected at
Fair Market Value; and
(vii) any Permitted Receivables Financing.
"Attributable Indebtedness" means, in respect of a Sale/Leaseback
Transaction, as of the time of determination, the present value (discounted at
the interest rate implicit in the Sale/Leaseback Transaction) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, at any date of determination with respect to any
Indebtedness, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such Indebtedness and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
"Blockage Notice" has the meaning specified in Section 1203.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of that
board, and with respect to any Subsidiary Guarantor, either the board of
directors of such Subsidiary Guarantor or any duly authorized committee of that
board.
"Board Resolution" means, with respect to the Company or a Subsidiary
Guarantor, a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company or the Subsidiary Guarantor, as the case may be, to
have been duly adopted by its Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Borrowing Base" means, as of any date of determination, the sum of
(i) 85% of the aggregate unpaid portions of accounts receivable of the Company
or any Restricted Subsidiary (other than Receivables and Related Assets being
sold pursuant to a Permitted Receivables Financing) arising in the ordinary
course of business from the sale of products or the provision of services (after
allowance for doubtful accounts and net of any credits, rebates, offsets or
other adjustments) and (ii) 50% of the value (determined at the lower of cost or
market on a basis consistent with the consolidated financial statements of the
Company, after appropriate write-downs for obsolescence,
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quality problems and the like) of inventories (including work in progress
inventory) of the Company or any Restricted Subsidiary held in the ordinary
course of business.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York or The City of Chicago are authorized or
obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or other ownership
interests, whether now outstanding or issued after the Issue Date, including,
without limitation, all common stock and Preferred Stock.
"Capitalized Lease" means, with respect to any Person, any lease of
any property (whether real, personal or mixed) of which the discounted present
value of the rental obligations of such Person as lessee, in conformity with
GAAP, is required to be capitalized on the balance sheet of such Person; and
"Capitalized Lease Obligation" means the rental obligations, as aforesaid, under
such Capitalized Lease.
"Change of Control" means (i) any "person" or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act,
whether or not applicable, except that for purposes of this clause (i) such
person or group shall be deemed to have "beneficial ownership" of all shares
that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), is or becomes the
"beneficial owner" (as such term is used in Rule 13d-3 promulgated pursuant
to the Exchange Act), directly or indirectly, of more than 35% of the
aggregate voting power of the Voting Stock of the Company; or (ii)
individuals who on the Issue Date constituted the Board of Directors of the
Company (together with any new directors whose election by such Board or
whose nomination for election by the stockholders of the Company was approved
by a majority of the directors then still in office who were either directors
on the Issue Date or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office.
"Change of Control Payment" has the meaning specified in Section
1014.
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"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), on a consolidated basis,
after eliminating (i) all intercompany items between the Company and any
Restricted Subsidiary and (ii) all current maturities of long-term Indebtedness,
all as determined in conformity with GAAP.
"Consolidated EBITDA" means, for any period, the sum of (i) Adjusted
Consolidated Net Income, plus (ii) Consolidated Interest Expense plus (iii) the
following to the extent deducted in calculating Adjusted Consolidated Net
Income: (A) income taxes (other than income taxes (either positive or negative)
attributable to extraordinary and non-recurring gains or losses or sales of
assets), (B) depreciation expense, (C) amortization expense and (D) other non-
cash items reducing Adjusted Consolidated Net Income, net of non-cash items
increasing Adjusted Consolidated Net Income, less (iv) the amount of all cash
payments (other than any cash payment that individually or together with any
other related cash payments aggregate less than $1.0 million) made during such
period to the extent that such payments relate to non-cash charges that were
added back in determining Consolidated EBITDA for such period or for any prior
period, all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP; PROVIDED that, if any
Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated
EBITDA shall be reduced (to the extent not otherwise reduced in conformity with
GAAP) by an
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amount equal to (A) the amount of the Adjusted Consolidated Net Income
attributable to such Subsidiary multiplied by (B) the quotient of (1) the
number of shares of outstanding common stock of such Subsidiary not owned on
the last day of such period by the Company or any Restricted Subsidiary
divided by (2) the total number of shares of outstanding common stock of such
Subsidiary on the last day of such period.
"Consolidated Fixed Charge Coverage Ratio" means, on any Transaction
Date, the ratio of (i) the aggregate amount of Consolidated EBITDA for the then
most recent four fiscal quarters prior to such Transaction Date for which
financial information in respect thereof is available immediately prior to such
Transaction Date (the "Reference Period") to (ii) the aggregate Consolidated
Fixed Charges during such Reference Period. In making the foregoing
calculation, (A) pro forma effect shall be given to (1) any Indebtedness
Incurred subsequent to the end of the Reference Period and prior to the
Transaction Date, (2) any Indebtedness Incurred during such Reference Period to
the extent such Indebtedness is outstanding at the Transaction Date and (3) any
Indebtedness to be Incurred on the Transaction Date, in each case as if such
Indebtedness had been Incurred on the first day of such Reference Period and in
each case after giving pro forma effect to the application of the proceeds
thereof as if such application had occurred on such first day; (B) Consolidated
Interest Expense attributable to interest on any Indebtedness (whether existing
or being Incurred) computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the Transaction Date (taking
into account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months) had been
the applicable rate for the entire Reference Period; (C) there shall be excluded
from Consolidated Fixed Charges any Consolidated Fixed Charges related to any
amount of Indebtedness, Redeemable Stock or obligations under leases that was
outstanding during such Reference Period or thereafter but that is not
outstanding or is to be repaid on the Transaction Date, except for Consolidated
Interest Expense accrued (as adjusted pursuant to clause (B) above) during such
Reference Period under a revolving credit or similar arrangement in effect on
the Transaction Date; (D) pro forma effect shall be given to Asset Dispositions
(other than an Asset Disposition involving assets having a Fair Market Value of
less than $2.0 million) and Asset Acquisitions (including giving pro forma
effect to the application of proceeds of any Asset Disposition) that occur
during such Reference Period or thereafter and on or prior to the Transaction
Date as if they had occurred and such proceeds had been applied
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on the first day of such Reference Period; and (E) pro forma effect shall be
given to Asset Dispositions (other than an Asset Disposition involving assets
having a Fair Market Value of less than $2.0 million) and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any
Asset Disposition) that have been made by any Person that has become a
Restricted Subsidiary or has been merged with or into the Company or any
Restricted Subsidiary during such Reference Period or subsequent to such
period and prior to the Transaction Date and that would have constituted
Asset Dispositions or Asset Acquisitions had such transactions occurred when
such Person was a Restricted Subsidiary as if such Asset Dispositions or
Asset Acquisitions were Asset Dispositions or Asset Acquisitions that
occurred on the first day of such Reference Period; PROVIDED that to the
extent that clause (D) or (E) of this sentence requires that pro forma effect
be given to an Asset Acquisition or Asset Disposition, such pro forma
calculation shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date of the Person, or Line of Business of the
Person, that is acquired or disposed for which financial information is
available.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of (i) Consolidated Interest Expense for such period and (ii) the
product of (x) cash and non-cash dividends (except dividends payable solely in
shares of Capital Stock that are not Redeemable Stock) paid, declared, accrued
or accumulated on any Redeemable Stock or other Preferred Stock and (y) a
fraction, the numerator of which is one and the denominator of which is one
minus the sum of the currently effective combined Federal, state, local and
foreign tax rate of the Company and its Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, the total
amount of interest expense of the Company and its consolidated Restricted
Subsidiaries, plus, to the extent not included in total interest expense, and to
the extent incurred by the Company and its Restricted Subsidiaries, without
duplication, (i) interest expense attributable to Capitalized Lease Obligations
paid, accrued or scheduled to be paid or to be accrued during such period, (ii)
amortization of original issue discount on any Indebtedness, (iii) the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting, (iv) all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, (v) the interest-equivalent costs associated with Hedging
Obligations, (vi) interest paid on Indebtedness that is Guaranteed by the
Company or any of its Restricted
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Subsidiaries and (vii) interest-equivalent costs associated with any
Permitted Receivables Financing, whether accounted for as interest expense or
loss on the sale of Receivables and Related Assets; EXCLUDING, HOWEVER, any
amount of such interest of any Restricted Subsidiary if the net income of
such Restricted Subsidiary is excluded in the calculation of Adjusted
Consolidated Net Income pursuant to clause (iii) of the definition thereof
(but only in the same proportion as the net income of such Restricted
Subsidiary is excluded from the calculation of Adjusted Consolidated Net
Income pursuant to clause (iii) of the definition thereof).
"Consolidated Net Tangible Assets" means, at any date of
determination, the total amount of assets (less accumulated depreciation and
amortization, allowances for doubtful receivables, other applicable reserves and
other properly deductible items) which would appear on a consolidated balance
sheet of the Company and its consolidated Restricted Subsidiaries, determined on
a consolidated basis in conformity with GAAP, and after giving effect to
purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of: (i) minority
interests in consolidated Subsidiaries held by Persons other than the Company or
a Restricted Subsidiary; (ii) excess of cost over fair value of assets of
businesses acquired, as determined in good faith by the Board of Directors;
(iii) any revaluation or other write-up in book value of assets subsequent to
the Issue Date as a result of a change in the method of valuation in conformity
with GAAP; (iv) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, licenses, organization or developmental expenses and other
intangible items; (v) treasury stock; (vi) cash set apart and held in a sinking
or other analogous fund established for the purpose of redemption or other
retirement of Capital Stock to the extent such obligation is not reflected in
Consolidated Current Liabilities; and (vii) Investments in and assets of
Unrestricted Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee in
The City of Chicago, at which at any particular time its corporate trust
business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1503.
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"Credit Agreement" means the Credit Agreement dated on or about the
Issue Date among the Company, certain subsidiaries of the Company, the Lenders
party thereto and National Westminster Bank Plc, as agent for such Lenders,
together with any related documents thereto (including, without limitation, any
security documents and guarantee agreements), in each case as such agreements
may be amended, supplemented, extended, renewed, restated, replaced, refinanced
or modified from time to time, including, without limitation, by adding
additional parties thereto or increasing the commitment thereunder; PROVIDED
that there may not be more than one Credit Agreement at any one time, which
shall be designated by the Company.
"Currency Agreement" means, with respect to any Person, any foreign
exchange contract, currency swap agreement or other similar agreement to which
such Person is a party or a beneficiary.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in the form of one or more Global Securities, The Depository
Trust Company for so long as it shall be a clearing agency registered under the
Exchange Act, or such successor as the Company shall designate from time to time
in an Officers' Certificate delivered to the Trustee.
"Defeasance" has the meaning specified in Section 1502.
"Designated Senior Indebtedness" means, with respect to any Person,
(i) any Indebtedness under the Credit Agreement (including all Obligations under
the Credit Agreement) and (ii) any other Senior Indebtedness which, at the date
of determination, has an aggregate principal amount of, or under which, at the
date of determination, the holders thereof are committed to lend up to at least
$25.0 million and is specifically designated as "Designated Senior Indebtedness"
for purposes of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Excess Funding Guarantor" has the meaning specified in Section 1305.
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"Excess Payment" has the meaning specified in Section 1305.
"Excess Proceeds Payment" has the meaning specified in Section 1012.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning specified in the form of the
Securities set forth in Section 202.
"Exchange Offer Registration Statement" has the meaning specified in
the form of the Securities set forth in Section 202.
"Exchange Security" means any security containing terms
substantially identical to the Securities originally issued hereunder (except
that such Exchange Securities (i) shall be registered under the Securities
Act and (ii) shall have an interest rate equal to 10-3/4% per annum, without
provision for adjustment as provided in Section 202) issued in exchange for a
Rule 144A Security or Rule 144A Securities pursuant to the Exchange Offer and
any Security with respect to which the next preceding Predecessor Security of
such Security was an Exchange Security.
"Expiration Date" has the meaning specified in the definition of
Offer to Purchase.
"Fair Market Value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Company or, where specified herein,
by the Board of Directors, whose determination shall be conclusive.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the date of determination, including,
without limitation, those 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 approved
by a significant segment of the accounting profession.
"Global Securities" has the meaning set forth in Section 201.
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"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); PROVIDED that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person pursuant to any Materials Hedging Contract, Interest
Rate Agreement or Currency Agreement.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Immaterial Subsidiary" means, at the date of determination, any
Restricted Subsidiary that is not a Significant Subsidiary.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness; PROVIDED that (i) the Indebtedness of a Person existing at the
time such Person became a Subsidiary or a Restricted Subsidiary, as the case may
be, shall be deemed to have been Incurred by such Subsidiary or Restricted
Subsidiary, as the case may be, and (ii) that neither the accrual of interest
nor the accretion of original issue discount shall be considered an Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), whether or not Incurred at the date of this
Indenture (i) all indebtedness of such Person for borrowed money, (ii) all
indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect of bankers'
acceptances, letters of credit or other similar instruments (including
reimbursement
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obligations with respect thereto), (iv) all obligations of such Person to pay
the deferred and unpaid purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course
of business), (v) all obligations of such Person as lessee under Capitalized
Leases, (vi) all indebtedness of other Persons secured by a Lien on any asset
of the first-mentioned Person, whether or not such Indebtedness is assumed by
the first-mentioned Person; PROVIDED that the amount of such Indebtedness
shall be the lesser of (A) the Fair Market Value of such asset at such date
of determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of other Persons to the extent Guaranteed by such Person, (viii)
to the extent not otherwise included in this definition, Hedging Obligations
and (ix) the maximum fixed redemption or repurchase price of any Redeemable
Stock issued by such Person; PROVIDED that up to $7.0 million payable to
Lockheed Martin pursuant to agreements relating to the reimbursement for
certain environmental costs (as in effect on the Issue Date) shall not be
included in the definition of "Indebtedness". The amount of Indebtedness of
any Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations described above, the maximum liability upon the occurrence of the
contingency giving rise to the obligation; PROVIDED that the amount
outstanding at any time of any Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at
such time as determined in conformity with GAAP.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed
to protect the Company or any Restricted Subsidiary against fluctuations in
interest rates.
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"Investment" means any direct or indirect advance, loan or other
extension of credit (other than advances to customers in the ordinary course of
business that are, in conformity with GAAP, recorded as accounts receivable on
the balance sheet of the lender) 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 of
Capital Stock, bonds, notes, debentures or other similar instruments issued by
any other Person. For purposes of the definition of "Unrestricted Subsidiary"
and Section 1009, "Investment" shall include (i) the Fair Market Value of the
assets (net of liabilities) of any Restricted Subsidiary at the time that such
Restricted Subsidiary is designated an Unrestricted Subsidiary and shall exclude
the Fair Market Value of the assets (net of liabilities) of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (ii) any property transferred to or from any Person
shall be valued at its Fair Market Value at the time of such transfer, in each
case as determined by the Board of Directors in good faith.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Investment Grade Rating" means that both S&P and Moody's have
assigned and published a rating in one of such agency's four highest generic
rating categories that signifies investment grade (i.e., BBB- (or the
equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by Moody's);
PROVIDED, that in the event S&P or Moody's is no longer in existence or issuing
ratings, for purposes of determining whether the Securities are rated
"Investment Grade", such organization may be replaced by a nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act) designated by the Company with notice to the Trustee and the provisions of
this definition shall apply to the rating issued by such replacement rating
agency.
"Issue Date" means the date and time at which the Securities are
originally issued under this Indenture.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof, any sale with
recourse against the seller or any Affiliate of the seller, any option or other
agreement to sell, or any filing of or any agreement to give any security
interest).
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"Line of Business" means, with respect to any Person, a "business" as
defined in Rule 11-01 under Regulation S-X promulgated by the Commission.
"Materials Hedging Contract" means any metals or commodities purchase
or hedging agreement or other agreement or arrangement, in each case, that is
designed to protect against exposures to price risk in the aluminum market or in
commodities used in the Aluminum Business.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Disposition, the
proceeds of such Asset Disposition in the form of cash or cash equivalents,
including payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary) and proceeds from the conversion of other property received when
converted to cash or cash equivalents, net of (i) brokerage commissions and
other fees and expenses (including, without limitation, fees and expenses of
counsel and investment bankers) related to such Asset Disposition,
(ii) provisions for all taxes (whether or not such taxes will actually be paid
or are payable) as a result of such Asset Disposition without regard to the
consolidated results of operations of the Company and its Restricted
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Disposition that either
(A) is secured by a Lien on the property or assets sold or (B) is required to be
paid as a result of such sale and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary as a reserve against any liabilities
associated with such Asset Disposition, 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 Disposition, all as determined in conformity with
GAAP.
"Notice of Default" means a written notice of the kind specified in
Section 501(3).
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"Obligations" means all obligations (whether in existence on the
Issue Date or arising thereafter) for, or Guaranteeing the payment of,
principal, premium, interest (including, without limitation, all interest
accrued or accruing after the commencement of any Reorganization of any
Person obligated with respect thereto in accordance with and at the contract
rate (including, without limitation, any rate applicable upon default)
specified in the agreement or instrument creating, evidencing or governing
any Indebtedness, whether or not, pursuant to applicable law or otherwise,
the claim for such interest is allowed as a claim in such case or
proceeding), penalties, fees, indemnifications, reimbursements and other
amounts in respect of any Indebtedness under the Credit Agreement.
"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at its address
appearing in the Security Register on the date of the Offer offering to purchase
up to the principal amount of Securities specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify (i) the expiration
date (the "Expiration Date") of the Offer to Purchase which shall be, subject to
any contrary requirements of applicable law, the date 20 Business Days from the
date such Offer is mailed, at which time the Company will accept for payment all
Securities or portions thereof properly tendered pursuant to the Offer and
(ii) a settlement date (the "Purchase Date") for the payment of such purchase
price within three Business Days after the Expiration Date. The Company shall
notify the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. The Offer shall contain or incorporate by reference
information concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will assist such Holders to make an informed
decision with respect to the Offer to Purchase, including a brief description of
the events requiring the Company to make the Offer to Purchase, and any other
information required by applicable law to be included therein. The Offer shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Offer to Purchase. The Offer shall also state:
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(A) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(B) the Expiration Date and the Purchase Date;
(C) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section hereof requiring the Offer to Purchase)
(the "Purchase Amount");
(D) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(E) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(F) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(G) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(H) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(I) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Expiration Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(J) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the
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close of business on the Expiration Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Security the Holder tendered, the certificate number of the Security
the Holder tendered and a statement that such Holder is withdrawing all
or a portion of its tender;
(K) that (1) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (2) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be purchased);
and
(L) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without a service charge, a new
Security or Securities, with the Subsidiary Guarantees endorsed thereon
executed by the Subsidiary Guarantors, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and in
exchange for the unpurchased portion of the principal of the Security so
tendered.
"Officers' Certificate" means a certificate signed by the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company or a Subsidiary Guarantor, as the case
may be, and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"Offshore Global Securities" has the meaning specified in Section 201.
"Offshore Physical Securities" has the meaning specified in Section
201.
"Opinion of Counsel" means, as to the Company or a Subsidiary
Guarantor, a written opinion of counsel, who may be an employee of or counsel
for the Company or the Subsidiary Guarantor, and who shall be acceptable to the
Trustee.
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"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company or a Subsidiary Guarantor) in trust or
set aside and segregated in trust by the Company or a Subsidiary
Guarantor (if the Company or a Subsidiary Guarantor shall act as its
own Paying Agent) for the Holders of such Securities; PROVIDED that,
if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which Defeasance has been effected pursuant
to Section 1502; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the
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pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Blockage Period" has the meaning specified in Section 1203.
"Permitted Business Venture" means an Investment in a Person (other
than a Restricted Subsidiary) for the principal purpose of securing materials or
commodities related to the production or processing of the Company's or any
Restricted Subsidiary's products in the Aluminum Business.
"Permitted Indebtedness" has the meaning specified in Section 1008.
"Permitted Liens" means, with respect to any Person, (i) Liens
existing on the Issue Date, (ii) pledges or deposits by such Person under
workers' compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (other than
for the payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits of
cash or United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or import
duties or for the payment of rent, in each case Incurred in the ordinary course
of business, (iii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings or other Liens arising out of judgments or
awards against such Person with respect to which such Person shall then be
proceeding with an appeal or other proceedings for review, (iv) Liens for
property taxes not yet subject to penalties for non-payment or which are being
contested in good faith and by appropriate proceedings, (v) Liens in favor of
issuers of surety bonds or letters of credit issued pursuant to the request of
and for the account of such Person in the ordinary course of its business;
PROVIDED, that such letters of credit do not constitute Indebtedness, (vi) minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property or Liens incidental to the conduct of the business
of such
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Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate materially impair
their use in the operation of the business of such Person, (vii) Liens securing
Indebtedness Incurred to finance the construction, purchase or lease of, or
repairs, improvements or additions to, inventory or other property of such
Person; PROVIDED that the Lien may not extend to any other property owned by
such Person or any of its Subsidiaries at the time the Lien is Incurred, and the
Indebtedness secured by the Lien may not be Incurred more than 365 days after
the later of the acquisition, completion of construction, repair, improvement,
addition or commencement of full operation of the property subject to the Lien,
(viii) Liens securing Indebtedness (including all Obligations) under the Credit
Agreement, (ix) Liens on property or shares of Capital Stock of another Person
at the time such other Person becomes a Subsidiary of such Person; PROVIDED,
that such Lien may not extend to any other property owned by such Person or any
of its Subsidiaries, (x) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means of an
exchange, merger or consolidation with or into such Person or a Subsidiary of
such Person; PROVIDED that such Liens may not extend to any other property owned
by such Person or any of its Subsidiaries, (xi) Liens securing Indebtedness or
other obligations of a Subsidiary of such Person owing to such Person or a
Wholly Owned Subsidiary of such Person or, in the case of the Company, to a
Wholly Owned Subsidiary), (xii) Liens securing Hedging Obligations so long as
such Hedging Obligations relate to Indebtedness that is, and is permitted to be
under the Indenture, secured by a Lien on the same property securing such
Hedging Obligations, (xiii) Liens on Receivables and Related Assets securing
Indebtedness or otherwise permitted to be Incurred, in each case, in connection
with a Permitted Receivables Facility, (xiv) Liens arising in connection with a
Sale/Leaseback Transaction permitted by the provisions described in Section 1016
(whether or not such provisions were then in effect), (xv) Liens securing
Indebtedness represented by any industrial revenue bonds, pollution control
bonds or other tax exempt financing; PROVIDED, that the aggregate amount of any
Indebtedness to which such Liens relate at any one time outstanding shall not
exceed $10.0 million, (xvi) other Liens securing Indebtedness (including
Attributable Indebtedness) in an aggregate amount not exceeding 10% of
Consolidated Net Tangible Assets, and (xvii) extensions, renewals or
replacements of any Liens referred to in clauses (i) through (xvi).
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"Permitted Receivables Financing" means a transaction or series of
transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Company or any Restricted Subsidiary and finances such Receivables and Related
Assets through the issuance of indebtedness or equity interests or through the
sale of the Receivables and Related Assets or a fractional undivided interest in
the Receivables and Related Assets; PROVIDED that (i) the Board of Directors
shall have determined in good faith that such Permitted Receivables Financing is
economically fair and reasonable to the Company and the Securitization
Subsidiary, (ii) all sales of Receivables and Related Assets to or by the
Securitization Subsidiary are made at Fair Market Value (as determined in good
faith by the Board of Directors), (iii) the financing terms, covenants,
termination events and other provisions thereof shall be market terms (as
determined in good faith by the Board of Directors), (iv) no portion of the
Indebtedness of a Securitization Subsidiary is Guaranteed by or is recourse to
the Company or any Restricted Subsidiary (other than recourse for customary
representations, warranties, covenants and indemnities, none of which shall
relate to the collectibility of the Receivables and Related Assets) and (v)
neither the Company nor any Subsidiary has any obligation to maintain or
preserve the Securitization Subsidiary's financial condition.
"Permitted Refinancing Indebtedness" has the meaning specified in
Section 1008.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof.
"Physical Securities" has the meaning specified in Section 201.
"Plan of Merger" means the Agreement and Plan of Merger, dated as of
August 19, 1996, between the Company, CALC Corporation and CasTech Aluminum
Group Inc.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
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"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or hereafter issued, including, without limitation, all
series and classes of such preferred or preference stock.
"Private Placement Legend" means the legend initially set forth on the
Rule 144A Securities in the form set forth in Section 202.
"Pro Rata Payment" has the meaning specified in Section 1305.
"Proceeding" has the meaning specified in Section 1202.
"Public Equity Offering" means an underwritten primary public offering
of common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Purchase Amount" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Date" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Price" has the meaning specified in the definition of Offer
to Purchase.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Receivables and Related Assets" means accounts receivable and
instruments, chattel paper, obligations, general intangibles and other similar
assets, in each case, relating to such receivables, including interest in
merchandise or goods, the sale or lease of which gave rise to such receivables,
related contractual rights, guarantees, insurance proceeds, collections, other
related assets and proceeds of all of the foregoing.
"Record Expiration Date" has the meaning specified in Section 104.
"Redeemable Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Securities, (ii) redeemable at the option of the
holder of such class or series of Capital Stock at any time
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prior to the Stated Maturity of the Securities or (iii) convertible into or
exchangeable for Capital Stock referred to in clause (i) or (ii) above (other
than Capital Stock convertible or exchangeable solely at the option of the
Company) or Indebtedness having a scheduled maturity prior to the Stated
Maturity of the Securities; PROVIDED that any Capital Stock that would not
constitute Redeemable Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock
upon the occurrence of an "asset sale" or "change of control" occurring prior
to the Stated Maturity of the Securities shall not constitute Redeemable
Stock if the "asset sale" or "change of control" provisions applicable to
such Capital Stock are no more favorable to the holders of such Capital Stock
than the provisions contained in Sections 1012 and 1014 and such Capital
Stock specifically provides that such Person will not repurchase or redeem
any such stock pursuant to such provisions prior to the Company's repurchase
of such Securities as are required to be repurchased pursuant to Sections
1012 and 1014. Notwithstanding the foregoing, Capital Stock shall not be
deemed to be Redeemable Stock if it may only be so redeemed in exchange for
Capital Stock that is not Redeemable Stock.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Default" has the meaning specified in the form of
Securities set forth in Section 202.
"Registration Rights Agreement" has the meaning specified in the form
of Securities set forth in Section 202.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Reorganization" means, with respect to any Person, any
reorganization, bankruptcy, insolvency, receivership or other similar statutory
or common law proceedings or arrangements, including without limitation any
proceeding under Title 11, United States Code or any similar federal, state or
foreign law for the relief of debtors, involving such Person or the readjustment
of such
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Person's liabilities or any assignment for the benefit of creditors or
any marshaling of the assets or liabilities of such Person.
"Representative" means any trustee, agent or representative for an
issue of Senior Indebtedness.
"Resale Registration Statement" has the meaning specified in the form
of the Securities set forth in Section 202.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of the officer's
knowledge of and familiarity with the particular subject.
"Restricted Investment" means any Investment by the Company or any
Restricted Subsidiary in any Person other than (i) an Investment in a Restricted
Subsidiary or in any Person that, as a result of such Investment, becomes a
Restricted Subsidiary, (ii) cash, (iii) U.S. Government Obligations, (iv) time
deposits and certificates of deposit or Eurodollar deposits due within one year
of any commercial bank whose outstanding senior long-term debt securities are
rated either A- or higher by S&P or A3 or higher by Moody's, (v) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (iii) of this paragraph with any bank meeting the
qualifications specified in clause (iv) of this paragraph, (vi) commercial paper
rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the
equivalent thereof by Moody's, maturing within one year after the date of
acquisition, (vii) an Investment in a money market mutual fund substantially all
of the assets of which are comprised of securities of the types described in
clauses (iii) through (vi) of this paragraph, (viii) securities due within six
months or less from the date of acquisition issued or fully and unconditionally
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or Moody's, (ix) loans or
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advances made to employees of the Company or any Restricted Subsidiary in the
ordinary course of business and in furtherance of the Company's or such
Restricted Subsidiary's business in an aggregate amount not to exceed $4.0
million at any time outstanding, (x) any Investment in a Permitted Business
Venture; PROVIDED, that (A) as a result of such Investment the Company or
such Restricted Subsidiary, as the case may be, will be entitled to a share
of the production of, or services provided by, such Permitted Business
Venture at least approximately proportionate to its ownership interest in
such Permitted Business Venture and (B) immediately after giving effect to
such Investment, the aggregate Fair Market Value (Fair Market Value to be
determined as of the date of such exchange by the Board of Directors and
evidenced by a Board Resolution) of all such Investments after the Issue Date
shall not exceed 10% of Consolidated Net Tangible Assets, (xi) in the event
the Company or any Restricted Subsidiary maintains any unfunded deferred
compensation plan (within the meaning of Title I of the Employee Retirement
Income Security Act of 1974, as amended), to the extent benefits under such
plan are defined by reference to specific investments, whether at the
participant's or the beneficiaries' election or otherwise, any Investment in
such a specific investment, and (xii) other Investments that do not in the
aggregate exceed $15.0 million at any time outstanding.
"Restricted Payment" has the meaning specified in Section 1009.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Revolving Loan Facility" means the revolving credit facility provided
under the Credit Agreement.
"Rule 144A Securities" means Securities that are not Exchange
Securities.
"Sale/Leaseback Transaction" means an arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of any
property or assets (other than any such arrangement involving a lease for a
term, including renewal rights, for not more than three years) whereby such
property or assets have been or are to be sold or transferred by the Company or
any Restricted Subsidiary to such Person.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
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"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Securities" shall
include any Exchange Securities to be issued and exchanged for any Securities
pursuant to the Registration Rights Agreement and this Indenture and for
purposes of this Indenture, all Rule 144A Securities and Exchange Securities
shall vote together as one series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Payment" has the meaning specified in Section 1202.
"Securitization Subsidiary" means a Wholly Owned Restricted Subsidiary
of the Company which is established for the limited purpose of acquiring and
financing Receivables and Related Assets and engaging in activities ancillary
thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means, with respect to any Person, all principal
of (premium, if any) and interest (including interest accruing on or after the
filing of any petition in bankruptcy or for Reorganization relating to such
Person whether or not a claim for post filing interest is allowed in such
proceedings) with respect to all Indebtedness of such Person (including with
respect to the Credit Agreement, all Obligations of such Person), whether
outstanding on the Issue Date or thereafter Incurred; PROVIDED that Senior
Indebtedness shall not include (i) any Indebtedness of such Person that, by its
terms or the terms of the instrument creating or evidencing such Indebtedness,
is pari passu with or expressly subordinate in right of payment to the
Securities or, in the case of a Subsidiary Guarantor, its Subsidiary Guarantee,
(ii) any obligation of such Person to any Subsidiary of such Person or, in the
case of a Subsidiary Guarantor, to the Company or any other Subsidiary of the
Company, (iii) any liability for Federal, state, local or other taxes owed or
owing by such Person, (iv) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (v) any Indebtedness of
such Person (and any accrued and unpaid interest in respect thereof) which is
subordinate or junior in any respect to any other
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Indebtedness or other obligation of such Person, (vi) that portion of any
Indebtedness which at the time of Incurrence is Incurred in violation of the
Indenture, or (vii) Redeemable Stock of such Person.
"Senior Nonmonetary Default" has the meaning specified in Section
1203.
"Senior Payment Default" has the meaning specified in Section 1203.
"Senior Subordinated Indebtedness" means (i) with respect to the
Company, the Securities and any other Indebtedness of the Company that
specifically provides that such Indebtedness is to rank pari passu with the
Securities in right of payment and is not subordinated by its terms in right
of payment to any Indebtedness or other obligation of the Company which is
not Senior Indebtedness and (ii) with respect to any Subsidiary Guarantor,
the Subsidiary Guarantee of such Subsidiary Guarantor and any other
Indebtedness of such Subsidiary Guarantor that specifically provides that
such Indebtedness is to rank pari passu with such Subsidiary Guarantee in
right of payment and is not subordinated by its terms in right of payment to
any Indebtedness or other Obligation of such Subsidiary Guarantor which is
not Senior Indebtedness.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) accounted for
more than 10% of the consolidated revenues of the Company and its Restricted
Subsidiaries for the then most recent four fiscal quarters prior to such date
of determination for which financial information is available at such date of
determination or (ii) was the owner of more than 10% of the consolidated
assets of the Company and its Restricted Subsidiaries as of such date of
determination.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means (i) with respect to any debt security or
other debt instrument, the date specified in such debt security as the fixed
date on which the final installment of principal of such debt security is due
and payable and (ii) with respect to any scheduled installment of principal
of or interest on any debt security or other
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debt instrument, the date specified in such debt security as the fixed date
on which such installment is due and payable.
"Step-Up" has the meaning specified in the form of the Security set
forth in Section 202.
"Step-Down Date" has the meaning specified in the form of the Security
set forth in Section 202.
"Stockholder Protection Rights Agreement" means the Company's
Stockholder Protection Rights Agreement, dated as of March 6, 1996, as in effect
on the Issue Date and as it may be amended, extended, renewed or replaced from
time to time; PROVIDED that no such amendment, extension, renewal or replacement
shall increase any obligation thereunder that may be a Restricted Payment, and
"Stock Purchase Rights" means the rights issued under such Stockholder
Protection Rights Agreement.
"Subordinated Indebtedness" means, with respect to any Person, any
Indebtedness (whether outstanding on the Issue Date or thereafter Incurred)
which is subordinated or junior in right of payment, in the case of Indebtedness
of the Company, to the Securities pursuant to a written agreement to that effect
and, in the case of Indebtedness of any Subsidiary Guarantor, to the Subsidiary
Guarantees pursuant to a written agreement to that effect.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by (i) such Person, (ii) such
Person and one or more other Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person. Unless otherwise specified, "Subsidiary" means a
Subsidiary of the Company.
"Subsidiary Guarantee Payment Blockage Period" has the meaning
specified in Section 1403.
"Subsidiary Guarantees" means the unconditional Guarantees by the
respective Subsidiary Guarantors of the due and punctual payment of principal of
(premium, if any) and interest on the Securities when and as the same shall
become due and payable and in the coin or currency in which the same are
payable, whether at Stated Maturity, by declaration of acceleration, call for
redemption, purchase or otherwise.
"Subsidiary Guarantors" means each of Commonwealth Aluminum Lewisport,
Inc., a Delaware corporation, Commonwealth Aluminum Sales Corporation, a
Delaware
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corporation, CALC Corporation, a Delaware corporation, CasTech Aluminum Group
Inc., a Delaware corporation, and Barmet Aluminum Corporation, an Ohio
corporation; PROVIDED, HOWEVER, that any Restricted Subsidiary of the Company
may become a Subsidiary Guarantor with respect to the Securities in the
manner specified in Section 1303.
"Subsidiary Guarantor Payment" has the meaning specified in Section
1402.
"Subsidiary Guarantor Proceeding" has the meaning specified in Section
1402.
"Subsidiary Guarantor Senior Nonmonetary Default" has the meaning
specified in Section 1403.
"Subsidiary Guarantor Senior Payment Default" has the meaning
specified in Section 1403.
"Term Loan Facility" means the term loan facility provided under the
Credit Agreement.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; PROVIDED, HOWEVER,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Global Securities" has the meaning specified in Section 201.
"U.S. Government Obligation" means (i) any security which is (x) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (y) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally
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guaranteed as a full faith and credit obligation by the United States of
America, and (ii) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S.
Government Obligation which is specified in clause (i) above and held by such
bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held; PROVIDED that for
purposes of Section 1504, in the case of any U.S. Government Obligation
specified in clause (i) above such obligation is not callable or redeemable
at the option of the issuer thereof and in the case of any depositary receipt
referred to in clause (ii) above (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
"U.S. Physical Securities" has the meaning specified in Section 201.
"Unrestricted Subsidiary" means (i) any Subsidiary that at the time of
determination shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Company in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may designate
any Restricted Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Redeemable Stock of the Company or any Capital Stock of any Restricted
Subsidiary, or owns or holds any Lien on any property of the Company or any
Restricted Subsidiary; PROVIDED that (1) such designation would be permitted
under Section 1009, (2) no portion of the Indebtedness or any other obligation
(contingent or otherwise) of such Subsidiary (A) is Guaranteed by the Company or
any Restricted Subsidiary, (B) is recourse to the Company or any Restricted
Subsidiary or (C) subjects any property or asset of the Company or any
Restricted Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, and (3) no default or event of default with respect to any
Indebtedness of such Subsidiary would permit any holder of any Indebtedness of
the Company or any Restricted Subsidiary to declare such Indebtedness of the
Company or any Restricted Subsidiary due and payable prior to its Stated
Maturity. The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED that immediately after giving
effect to such designation (x) the Company could Incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness)
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and (y) no Default or Event of Default shall have occurred and be continuing.
Any such designation by the Board of Directors of the Company 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.
"Vice President", when used with respect to the Company, a Subsidiary
Guarantor or the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president".
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any Subsidiary of any Person,
such Subsidiary if all of the outstanding Capital Stock or other similar equity
ownership interests (other than Preferred Stock) in such Subsidiary (other than
any director's qualifying shares or Investments by foreign nationals mandated by
applicable law) is owned directly or indirectly by such Person.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1004) shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
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 complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments
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under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
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 agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are received by 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 the Holders signing 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 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
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 a certificate of a 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 the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company or any
Subsidiary Guarantor in reliance thereon, whether or not notation of such action
is made upon such Security.
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The Company may set any day as a record date for the purpose of
determining the Holders entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders; PROVIDED that
the Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders on such record date,
and no other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Record Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action
by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Record Expiration Date to be given
to the Trustee in writing and to each Holder in the manner set forth in Section
106.
The Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section
502, (iii) any request to institute proceedings referred to in Section 507(2) or
(iv) any direction referred to in Section 512. If any record date is set
pursuant to this paragraph, the Holders on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
PROVIDED that no such action shall be effective hereunder unless taken on or
prior to the applicable Record Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect)
and
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nothing in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding Securities
on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Record Expiration Date to be given to the Company in writing and
to each Holder in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the "Record
Expiration Date" and from time to time may change the Record Expiration Date to
any earlier or later day; PROVIDED that no such change shall be effective unless
notice of the proposed new Record Expiration Date is given in writing to the
other party authorized in this Section to set record dates, and to each Holder
in the manner set forth in Section 106, on or prior to the existing Record
Expiration Date. If a Record Expiration Date is not designated with respect to
any record date set pursuant to this Section, the party hereto which set such
record date shall be deemed to have initially designated the 180th day after
such record date as the Record Expiration Date with respect thereto, subject to
its right to change the Record Expiration Date as provided in this paragraph.
Without limiting the forgoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND
SUBSIDIARY GUARANTORS.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Indenture Trust Division, or
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(2) the Company or any Subsidiary Guarantor by the Trustee or
by any Holder shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to
the Trustee by the Company and, in the case of any Subsidiary Guarantor,
to it in care of the Company at such address.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. APPLICATION OF TRUST INDENTURE ACT.
The Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that
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is required under such Act to be a part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act 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 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or any
Subsidiary Guarantor shall bind its respective successors and assigns, whether
so expressed or not. All agreements of the Trustee in this Indenture shall bind
its respective successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities 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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture, the Securities or the Subsidiary
Guarantees, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the holders of Senior Indebtedness
(subject to Articles Twelve and Fourteen hereof) and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES ENDORSED
THEREON SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
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SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. FORMS GENERALLY.
The Securities, the Subsidiary Guarantees to be endorsed thereon and
the Trustee's certificates of authentication shall be in substantially the forms
set forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or Subsidiary Guarantees,
as evidenced by their execution of the Securities.
The definitive Securities and Subsidiary Guarantees to be endorsed
thereon shall be printed, lithographed or engraved or may be produced in any
other manner, all as determined by the officers executing such Securities or
Subsidiary Guarantees, as evidenced by their execution of such Securities or
Subsidiary Guarantees, as the case may be.
Rule 144A Securities offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more permanent global Securities in
registered form, substantially in the form set forth in this Indenture (the
"U.S. Global Securities"), deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company
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and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the U.S. Global Securities 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.
Rule 144A Securities offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent global Securities in definitive fully registered form substantially in
the form set forth in this Indenture (the "Offshore Global Securities")
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company with the Subsidiary Guarantees of the Subsidiary Guarantors endorsed
thereon and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Offshore Global Securities 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.
Rule 144A Securities offered and sold in reliance on Regulation D
under the Securities Act shall be issued in the form of permanent certificated
Securities in registered form in substantially the form set forth in the
Indenture (the "U.S. Physical Securities"). Securities issued pursuant to
Section 311 in exchange for interests in the Offshore Global Securities shall be
in the form of permanent certificated Securities in registered form
substantially in the form set forth in this Indenture (the "Offshore Physical
Securities").
The Offshore Physical Securities and U.S. Physical Securities are
sometimes collectively herein referred to as the "Physical Securities". The
U.S. Global Securities and the Offshore Global Securities are sometimes referred
to herein as the "Global Securities".
SECTION 202. FORM OF FACE OF SECURITY.
Unless and until a Rule 144A Security is exchanged for an Exchange
Security in connection with an effective Registration Statement pursuant to the
Registration Rights Agreement, (i) the U.S. Global Securities and each U.S.
Physical Security shall bear the legend, set forth below on the face thereof and
(ii) each Offshore Physical Security and the Offshore Global Security shall bear
the legend set forth below on the face thereof until at least 41 days after the
Issue Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Exhibit A hereto.
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[If a Global Security, then insert -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGEABLE IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security to be held by The Depository Trust Company, then
insert -- 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.]
[If Rule 144A Securities, then insert -- THIS SECURITY 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 IN THE
FOLLOWING SENTENCE. 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) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) 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, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT TO
SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
COMMONWEALTH ALUMINUM 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 INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES 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) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES AT THE TIME OF
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TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
COMMONWEALTH ALUMINUM CORPORATION THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT AN INITIAL INVESTOR THAT IS AN INSTITUTIONAL ACCREDITED
INVESTOR PURCHASING AS DESCRIBED IN CLAUSE (1)(B) ABOVE SHALL NOT BE
PERMITTED TO TRANSFER THIS SECURITY TO AN INSTITUTIONAL ACCREDITED INVESTOR.
IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR PURCHASING PURSUANT TO CLAUSE (2)(C) ABOVE, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND COMMONWEALTH
ALUMINUM 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
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.]
COMMONWEALTH ALUMINUM CORPORATION
10-3/4% Senior Subordinated Notes Due 2006
Guaranteed as to Payment of Principal,
Premium, if any, and Interest by Certain
Subsidiaries of Commonwealth Aluminum Corporation
[CUSIP/CINS]
No. __________ $__________
Commonwealth Aluminum Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to __________________, or
registered assigns, the principal sum
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of _____________________ Dollars ($________) on October 1, 2006, and to pay
interest thereon from September 20, 1996 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually on April 1 and October 1 in each year, commencing April 1,
1997, at the rate of 10-3/4% per annum, until the principal hereof is paid or
made available for payment [IF RULE 144A SECURITIES, THEN INSERT: ; PROVIDED,
HOWEVER, that if (i) an exchange offer (the "Exchange Offer") for a security
with terms identical to this Security (except that such Security will not
contain terms with respect to the Additional Interest payments described
below or transfer restrictions) pursuant to a registration statement (the
"Exchange Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), has not been consummated by April 1, 1997 or
(ii), in lieu thereof, a registration statement registering this Security for
resale (a "Resale Registration Statement") has not become or been declared
effective by April 1, 1997 (each such event referred to in clauses (i) and
(ii), a "Registration Default") in accordance with the terms of the
Registration Rights Agreement dated September 20, 1996 (the "Registration
Rights Agreement") between the Company, Morgan Stanley & Co. Incorporated and
NatWest Capital Markets Limited, then the aforesaid rate of 10-3/4% per annum
shall increase (the "Step-Up") in an amount equal to 50 basis points (1/2 of
1%) per annum (100 basis points (1%) per annum for any period on or after
October 1, 1997), from the period from the occurrence of the Registration
Default until such time (the "Step-Down Date") as no Registration Default is
in effect. Interest accruing as a result of the Step-Up is referred to
herein as "Additional Interest." Additional Interest shall no longer accrue
and interest shall accrue on this Security at the aforesaid rate of 10-3/4%
per annum from and including the Step-Down Date. Accrued Additional
Interest, if any, shall be paid semi-annually on April 1 and October 1 in
each year; and the amount of accrued Additional Interest shall be determined
on the basis of the number of days actually elapsed. Any accrued and unpaid
interest (including Additional Interest) on this Security upon the issuance
of an Exchange Security (as defined in the Indenture) in exchange for this
Security shall cease to be payable to the Holder hereof but such accrued and
unpaid interest (including Additional Interest) shall be payable on the next
Interest Payment Date for such Exchange Security to the Holder thereof on the
related Regular Record Date. The Holder of this Security is entitled to the
benefits of such Registration Rights Agreement.] The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record
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<PAGE>
Date for such interest, which shall be the March 15 or September 15 (whether
or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the Corporate Trust Office of the Trustee and at any
other office or agency maintained by the Company for such purpose, 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; PROVIDED, HOWEVER, that
at the option of the Company payment of interest may be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register. Notwithstanding the foregoing, upon written
instructions from a registered Holder of $5.0 million or more aggregate
principal amount of Securities in definitive form not less than 15 days prior
to an Interest Payment Date for the Securities, payment of interest will be
made by transfer by the Trustee of immediately available funds to such
account at such bank in the United States as such registered Holder shall
have designated. Interest payable on the Securities held through DTC will be
available to DTC participants on the Business Day following payment thereof
by the Company.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if 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
Security shall not be
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entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
COMMONWEALTH ALUMINUM CORPORATION
By______________________________
Attest:
____________________________
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of
the Company designated as its 10-3/4% Senior Subordinated Notes Due 2006
(herein called the "Securities"), limited in aggregate principal amount to
$125,000,000, issued and to be issued under an Indenture, dated as of
September 20, 1996 (herein called the "Indenture"), between the Company, the
Subsidiary Guarantors named therein and Harris Trust and Savings Bank, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Subsidiary Guarantors, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities and of the terms upon which
the Securities and the Subsidiary Guarantees endorsed thereon are, and are to
be, authenticated and delivered.
The Securities may not be redeemed prior to October 1, 2001 except
that the Securities are subject to redemption upon not less than 30 days' nor
more than 60 days' notice by mail, at any time prior to October 1, 1999, at
the election of the Company, in an aggregate principal amount not exceeding
$43.75 million with the proceeds of one or more Public Equity Offerings, at a
Redemption Price equal to 110.75% of the principal amount, together with
accrued
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interest to the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date); PROVIDED
that at least $65.0 million aggregate principal amount of the Securities
remains outstanding after each such redemption and that any such redemption
occurs within 60 days of the date of the closing of such Public Equity
Offering.
The Securities are also subject to redemption upon not less than 30
days' nor more than 60 days' notice by first class mail, at any time on or
after October 1, 2001, as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed during the 12-month period beginning October 1 of the
years indicated,
Redemption
Year Price
---- -----------
2001 105.375%
2002 102.688
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that
is on or prior to the Redemption Date).
The Indenture provides that, subject to certain conditions, if (i) a
Change of Control (as defined in the Indenture) occurs or (ii) certain Excess
Proceeds are available to the Company as a result of Asset Dispositions, the
Company shall be required to make an Offer to Purchase for all or a specified
portion of the Securities.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take
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such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact
for any and all such purposes.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under the Indenture and this
Security are guaranteed on a senior subordinated basis pursuant to Subsidiary
Guarantees endorsed hereon. The Indenture provides that a Subsidiary Guarantor
shall be released from its Subsidiary Guarantee upon compliance with certain
conditions.
The Indenture provides that if the Securities are assigned an
Investment Grade Rating (as defined therein), then, if the Company so elects,
certain restrictive covenants and associated Events of Default will no longer
apply and the Company will become subject to other restrictive covenants.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, the principal of
(and premium, if any) and accrued interest on all the Securities may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Subsidiary Guarantors and the rights of the Holders of the
Securities under the Indenture at any time by the Company, the Subsidiary
Guarantors and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company or the Subsidiary Guarantors with certain provisions of the
Indenture and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or
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<PAGE>
not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained for such purpose in the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, with the Subsidiary Guarantees
endorsed thereon, will be issued to the designated transferee or transferees.
Subject to Section 302 of the Indenture, the Securities are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are
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<PAGE>
exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Subsidiary
Guarantors, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months [IF RULE 144A SECURITIES, THEN INSERT:; PROVIDED,
HOWEVER, that Additional Interest on Rule 144A Securities shall be computed on
the basis of a 365- or 366-day year, as the case may be, and the number of days
actually elapsed].
The Company shall pay interest on overdue principal (and premium, if
any) and interest on overdue installments of interest, to the extent lawful, at
the rate of 10-3/4% per annum.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 1012 or 1014 of the Indenture, check the box:
/ /
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Section 1012 or 1014 of the Indenture, state the amount:
$___________
Dated:________________ Your Signature:____________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:________________________________________
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in STAMP or such other "signature guarantee
program" as may be determined by the Trustee in addition to,
or in substitution for STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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<PAGE>
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL RULE 144A SECURITIES (OTHER THAN
UNLEGENDED OFFSHORE GLOBAL NOTES AND
UNLEGENDED OFFSHORE PHYSICAL NOTES)]
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date the Resale Registration Statement
is declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[CHECK ONE]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by
Rule 144A thereunder or in accordance with Rule 904 of Regulation S
thereunder.
OR
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 305 of the Indenture shall have
been satisfied.
Date:__________ ___________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is either
(i) purchasing this Security for its own account or an account with respect to
which it exercises sole
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<PAGE>
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 or (ii) purchasing this Security outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act of 1933, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:__________ ___________________________________
NOTICE: To be executed by an executive officer
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
_________________________,
as Trustee
By_______________________
Authorized Officer
SECTION 205. FORM OF SUBSIDIARY GUARANTEE.
GUARANTEE
For value received, each of the Subsidiary Guarantors listed below
hereby jointly and severally unconditionally Guarantees to the Holder of the
Security upon which this Guarantee is endorsed, and to the Trustee on behalf of
such Holder, the due and punctual payment of the principal of (and premium, if
any) and interest on such Security when and as the same shall become due and
payable, whether at the Stated Maturity, by acceleration, call for redemption,
purchase or otherwise, according to the terms thereof and of the Indenture
referred to therein. In case of the failure of the Company punctually to make
any such payment, each of
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the Subsidiary Guarantors hereby jointly and severally agrees to cause such
payment to be made punctually when and as the same shall become due and payable,
whether at the Stated Maturity or by acceleration, call for redemption, purchase
or otherwise, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or the Indenture, the
absence of any action to enforce the same or any release or amendment or waiver
of any term of any other Guarantee of, or any consent to departure from any
requirement of any other Guarantee of all or of any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of the Bankruptcy Code of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the Company,
as debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee or either of them with respect to any provisions thereof or of the
Indenture, the obtaining of any judgment against the Company or any action to
enforce the same, the existence of any claim, set-off or other rights which the
Subsidiary Guarantor may have at any time against the Company or any Holder of
the Securities, whether in connection herewith or any unrelated transaction, or
any other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Subsidiary Guarantors hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders exhaust any right or take any
action against the Company or any other Person (including any other Subsidiary
Guarantor), 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 or notice with respect to such Security or the Indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Subsidiary
Guarantee will not be discharged except by complete performance of the
obligations contained in such Security and in this Subsidiary Guarantee. Each
of the Subsidiary Guarantors hereby agrees that, in the event of a default in
payment of principal (or premium, if any) or interest on such Security, whether
at their Stated Maturity, by acceleration, call for redemption, purchase or
otherwise, legal proceedings may be instituted by the Trustee on behalf of, or
by, the Holder of such Security, subject to the terms and conditions set forth
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in the Indenture, directly against each of the Subsidiary Guarantors to enforce
this Subsidiary Guarantee without first proceeding against the Company. Each
Subsidiary Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Subsidiary Guarantor agrees to pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would otherwise
have been due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.
The indebtedness of each Subsidiary Guarantor evidenced by this
Subsidiary Guarantee is, to the extent provided in the Indenture, subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness of such Subsidiary Guarantor, and this Subsidiary Guarantee is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
No reference herein to the Indenture and no provision of this
Subsidiary Guarantee or of the Indenture shall alter or impair the Subsidiary
Guarantee of any Subsidiary Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and interest
on the Security upon which this Subsidiary Guarantee is endorsed.
Each Subsidiary Guarantor shall be subrogated to all rights of the
Holder of this Security against the Company in respect of any amounts paid by
such Subsidiary Guarantor on account of this Security pursuant to the provisions
of its Subsidiary Guarantee or the Indenture; PROVIDED, HOWEVER, that such
Subsidiary Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal of
(and premium, if any) and interest on this Security and all other Securities
issued under the Indenture shall have been paid in full.
The obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee shall be limited to an aggregate
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amount (which may be zero) equal to the lesser of (i) the largest amount that
would not render its obligations hereunder or under Section 6 of the Credit
Agreement subject to avoidance under Section 548 of the United States Bankruptcy
Code or any comparable provisions of any applicable state law and (ii) the
largest amount that would not cause the obligations of such Subsidiary Guarantor
under Section 6 of the Credit Agreement to be reduced pursuant to
subsection 6.08 thereof.
This Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Securities whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
The Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of such right
does not impair the rights of the Holders under this Subsidiary Guarantee.
The Subsidiary Guarantors or any particular Subsidiary Guarantor shall
be released from this Subsidiary Guarantee upon the terms and subject to certain
conditions provided in the Indenture.
By delivery of a Supplemental Indenture to the Trustee in accordance
with the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Guarantee for the benefit of the Holder of this Security with the same
effect as if such Subsidiary Guarantor was named below.
All terms used in this Subsidiary Guarantee which are defined in the
Indenture referred to in the Security upon which this Subsidiary Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
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This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is endorsed shall have been executed by the Trustee under
the Indenture by manual signature.
Reference is made to Article Thirteen and Article Fourteen of the
Indenture for further provisions with respect to this Subsidiary Guarantee.
Anything herein to the contrary notwithstanding, the obligations of
CasTech Aluminum Group Inc. and Barmet Aluminum Corporation under this Guarantee
shall first become effective, and CasTech Aluminum Group Inc. and Barmet
Aluminum Corporation shall first become Subsidiary Guarantors, upon the
effectiveness of the merger of CALC Corporation into CasTech Aluminum Group Inc.
as contemplated by the Agreement and Plan of Merger dated as of August 19, 1996
between the Company, CALC Corporation and CasTech Aluminum Group Inc.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Subsidiary Guarantee to be duly executed.
Commonwealth Aluminum Lewisport, Inc.
Commonwealth Aluminum Sales Corporation
CALC Corporation
Each as Subsidiary Guarantor
By ____________________________
Authorized Signatory
CasTech Aluminum Group Inc.
Barmet Aluminum Corporation
Each as Subsidiary Guarantor
By ____________________________
Authorized Signatory
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ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $125,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant to
Section 1012 or 1014. The Company may issue Exchange Securities from time to
time pursuant to an Exchange Offer or otherwise, subject to Section 303, in
authorized denominations in exchange for a like principal amount of Rule 144A
Securities. Upon any such exchange the Rule 144A Securities shall be cancelled
in accordance with Section 309 and shall no longer be deemed Outstanding for any
purpose. In no event shall the aggregate principal amount of Rule 144A
Securities and Exchange Securities Outstanding exceed $125,000,000.
The Securities shall be known and designated as the "10-3/4% Senior
Subordinated Notes Due 2006" of the Company. Their Stated Maturity shall be
October 1, 2006, and they shall bear interest at the rate of 10-3/4% per annum,
from September 20, 1996 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable semi-
annually on April 1 and October 1, commencing April 1, 1997, until the principal
thereof is paid or made available for payment; PROVIDED, HOWEVER, with respect
to Rule 144A Securities, if there has been a Registration Default, a Step-Up
will occur and the Rule 144A Securities will from then bear Additional Interest
until the Step-Down Date. Accrued Additional Interest, if any, shall be paid in
cash in arrears semi-annually on April 1 and October 1 in each year; and the
amount of accrued Additional Interest shall be determined on the basis of the
number of days actually elapsed.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the Corporate Trust Office of the Trustee and at any other
office or agency maintained by the Company for such purpose; PROVIDED, HOWEVER,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register. Notwithstanding the foregoing, upon written
instructions from a registered Holder of $5.0 million or more aggregate
principal amount of Securities in definitive form not less than 15 days prior to
an Interest
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Payment Date for the Securities, payment of interest will be made by transfer by
the Trustee of immediately available funds to such account at such bank in the
United States as such registered Holder shall have designated. Interest payable
on the Securities held through DTC will be available to DTC participants on the
Business Day following payment thereof by the Company.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Sections 1012 and 1014 of the Indenture.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subordinated in right of payment to Senior
Indebtedness of the Company as provided in Article Twelve.
The Securities shall be guaranteed by the Subsidiary Guarantors as
provided in Article Thirteen.
The Subsidiary Guarantees shall be subordinated in right of payment to
Senior Indebtedness of the Subsidiary Guarantors as provided in Article
Fourteen.
The Securities shall be subject to defeasance or covenant defeasance
as provided in Article Fifteen.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof;
PROVIDED that Securities will be issued to Institutional Accredited Investors
only in denominations of $250,000 of principal amount and any integral multiple
of $1,000 in excess thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY
AND DATING.
The Securities shall be executed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company and
having endorsed thereon the Subsidiary Guarantees executed pursuant to Section
1302 by the Subsidiary Guarantors to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities with
the Subsidiary Guarantees of the Subsidiary Guarantors endorsed thereon; and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities with the Subsidiary Guarantees of the Subsidiary Guarantors
endorsed thereon as in this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery of
this Indenture and after the effectiveness of a Registration Statement under the
Securities Act with respect thereto, the Company may deliver Exchange Securities
executed by the Company and having endorsed thereon the Subsidiary Guarantees
executed pursuant to Section 1302 by the Subsidiary Guarantors to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Exchange Securities with the Subsidiary Guarantees of the
Subsidiary Guarantors endorsed thereon and a like principal amount of Rule 144A
Securities for cancellation in accordance with Section 309 of this Indenture,
and the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities with the Subsidiary Guarantees of the Subsidiary
Guarantors endorsed thereon. In authenticating such Exchange Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) that such Exchange Securities have been duly and validly issued
in accordance with the terms of the Indenture, and are entitled to all the
rights and benefits set forth herein; and
(b) that the issuance of the Exchange Securities in exchange for the
Rule 144A Securities has been
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effected in compliance with the Securities Act of 1933, as amended.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and having
endorsed thereon the Subsidiary Guarantees substantially of the tenor of the
definitive Subsidiary Guarantees in lieu of which they are issued duly executed
by the Subsidiary Guarantors and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities and
Subsidiary Guarantees may determine, as evidenced by their execution of such
Securities and Subsidiary Guarantees.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations and like tenor having endorsed thereon Subsidiary
Guarantees executed by the Subsidiary Guarantors. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
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SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided. Such Security Register shall
distinguish between Rule 144A Securities and Exchange Securities.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount and tenor, each such Security having endorsed thereon the Subsidiary
Guarantees executed by the Subsidiary Guarantors.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, and having the Subsidiary Guarantees endorsed thereon executed by each
Subsidiary Guarantor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, the Subsidiary Guarantors shall execute the Subsidiary
Guarantees endorsed on and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the respective
Subsidiary Guarantors, evidencing the same debt and Subsidiary Guarantees, and
(subject to the provisions in the Rule 144A Securities regarding the payment of
Additional Interest) entitled to the same benefits under this Indenture, as the
Securities and Subsidiary Guarantees surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or
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be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1108 or in accordance with any Offer
to Purchase pursuant to Section 1012 or 1014 not involving any transfer.
If the Securities are to be redeemed in part, the Company shall not be
required (i) to issue, register the transfer of or exchange any Security during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities selected for redemption under
Section 1104 and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
All Rule 144A Securities initially issued hereunder shall, upon
issuance, bear the legend specified in Section 202 to be applied to such a
Security and such required legend shall not be removed unless the Company shall
have delivered to the Trustee (and the Securities Registrar, if other than the
Trustee) a Company Order which states that the Security may be issued without
such legend thereon. If such legend required for a Rule 144A Security has been
removed from a Security as provided above, no other Security issued in exchange
for all or any part of such Security shall bear such legend, unless the Company
has reasonable cause to believe that such other Security is a "restricted
security" within the meaning of Rule 144 of the Securities Act and instructs the
Trustee to cause a legend to appear thereon. The Trustee shall refuse to
register any transfer of a Rule 144A Security in violation of the restrictions
set forth in such legend.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute, the Subsidiary Guarantors shall execute the Subsidiary Guarantees
endorsed on and the Trustee shall authenticate and deliver in exchange therefor
a new Security of like tenor and principal
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amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and the Subsidiary Guarantors and any agent of any of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of like tenor and principal amount,
having endorsed thereon the Subsidiary Guarantees executed by the Subsidiary
Guarantors and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, and the Subsidiary Guarantees endorsed
thereon, shall constitute an original additional contractual obligation of the
Company and the respective Subsidiary Guarantors, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST
RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is
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registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security (including any interest
on the Defaulted Interest) and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be
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required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Subsidiary Guarantors, the Trustee and any agent of the
Company, the Subsidiary Guarantors or the Trustee may treat the Person in whose
name such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Subsidiary
Guarantors, the Trustee nor any agent of the Company, the Subsidiary Guarantors
or the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or pursuant to any Offer to Purchase pursuant to
Section 1012 or 1014 shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months;
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PROVIDED, HOWEVER, that Additional Interest on Rule 144A Securities shall be
computed on the basis of a 365- or 366-day year, as the case may be, and the
number of days actually elapsed.
SECTION 311. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The U.S. Global Securities and Offshore Global Securities initially
shall (i) be registered in the name of the Depositary for such Global Securities
or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian
for such Depositary and (iii) bear legends as set forth in Section 202.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, 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 such Global
Security 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 Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 312. In addition, U.S. Physical
Securities and Offshore Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Security or the Offshore Global Security, respectively, if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the U.S. Global Security or the Offshore Global Security, as the case may
be, and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default has occurred and is continuing and the
Securities Registrar has received a request to the foregoing effect from the
Depositary.
(c) Any beneficial interest in one of the Global Securities that is
transferred to a Person who takes
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delivery in the form of an interest in the other Global Security will, upon
transfer, cease to be an interest in such Global Security and become an interest
in the other Global Security, and, accordingly, will thereafter be subject to
all transfer restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Security for as long as it remains such an
interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a Global Security to beneficial owners pursuant to paragraph (b) of
this Section, the Securities Registrar shall reflect on its books and records
the date and a decrease in the principal amount of such Global Security in an
amount equal to the principal amount of the beneficial interest in such Global
Security to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Securities with the Subsidiary
Guarantees of the Subsidiary Guarantors endorsed thereon of like tenor and
amount.
(e) In connection with the transfer of the entire U.S. Global
Security or Offshore Global Security to beneficial owners pursuant to paragraph
(b) of this Section, the U.S. Global Security or Offshore Global Security, as
the case may be, shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the U.S. Global Security or Offshore Global
Security, as the case may be, an equal aggregate principal amount of U.S.
Physical Securities or Offshore Physical Securities, as the case may be, with
the Subsidiary Guarantees of the Subsidiary Guarantors endorsed thereon, of
authorized denominations.
(f) Any U.S. Physical Security delivered in exchange for an interest
in the U.S. Global Security pursuant to paragraph (b) or (d) of this Section
shall, except as otherwise provided by paragraph (f) of Section 312, bear the
legend regarding transfer restrictions applicable to the U.S. Physical Security
set forth in Section 202.
(g) Any Offshore Physical Security delivered in exchange for an
interest in the Offshore Global Security pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 312,
bear the legend regarding transfer restrictions applicable to the Offshore
Physical Security set forth in Section 202.
(h) The registered holder of a Global Security may grant proxies and
otherwise authorize any person,
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including Agent Members and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(i) QIBs that are beneficial owners of interests in a U.S. Global
Security may receive Physical Securities (which shall bear the Private Placement
Legend if required by Section 202) in accordance with the procedures of the
Depositary. In connection with the execution, authentication and delivery of
such Physical Securities, the Securities Registrar shall reflect on its books
and records a decrease in the principal amount of the relevant U.S. Global
Security equal to the principal amount of such Physical Securities and the
Company shall execute and the Trustee shall authenticate and deliver one or more
Physical Securities with the Subsidiary Guarantees of the Subsidiary Guarantors
endorsed thereon having an equal aggregate principal amount.
SECTION 312. SPECIAL TRANSFER PROVISIONS.
Unless and until a Security is exchanged for an Exchange Security in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement, the following provisions shall apply:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Securities Registrar shall register the transfer of any
Security, whether or not such Security bears the Private Placement Legend,
if (x) the requested transfer is after the time period referred to in Rule
144(k) under the Securities Act as in effect with respect to such transfer
or (y) the proposed transferee has delivered to the Securities Registrar
(A) a certificate substantially in the form of Exhibit B hereto and (B) if
the aggregate principal amount of the Securities being transferred is less
than $250,000 at the time of such transfer, an opinion of counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Securities Registrar of (x) the documents, if any, required by paragraph
(i) and (y) instructions given in accordance with the
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Depositary's and the Securities Registrar's procedures, the Securities
Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the U.S. Global Security in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities, with the
Subsidiary Guarantees of the Subsidiary Guarantors endorsed thereon, of
like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical Security
or an interest in the U.S. Global Securities to a QIB (excluding Non-U.S.
Persons):
(i) If the Security to be transferred consists of (x) U.S. Physical
Securities, the Securities Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised the
Company and the Securities Registrar in writing, that the sale has been
made in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating, or
has otherwise advised the Company and the Securities Registrar in writing,
that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account 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 acknowledges
that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A or (y) an interest in the U.S. Global Security, the
transfer of such interest may be effected only through the book entry
system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Security
to be transferred consists of U.S. Physical Securities, upon receipt by the
Securities Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the Securities
Registrar's procedures, the Securities Registrar shall reflect on its books
and records the date and an increase in the
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principal amount of the U.S. Global Security in an amount equal to the
principal amount of the U.S. Physical Securities, to be transferred, and
the Trustee shall cancel the U.S. Physical Security so transferred.
(c) TRANSFERS OF INTERESTS IN THE OFFSHORE GLOBAL SECURITIES OR
OFFSHORE PHYSICAL SECURITIES. The following provisions shall apply with respect
to any transfer of interests in the Offshore Global Securities or Offshore
Physical Securities:
(i) prior to the removal of the Private Placement Legend from the
Offshore Global Security or Offshore Physical Securities pursuant to
Section 202, the Securities Registrar shall refuse to register such
transfer; and
(ii) after such removal, the Securities Registrar shall register the
transfer of any such Security without requiring any additional
certification.
(d) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following
provisions shall apply with respect to any transfer of a Security to a Non-U.S.
Person:
(i) The Securities Registrar shall register any proposed transfer to
any Non-U.S. Person if the Security to be transferred is a U.S. Physical
Security or an interest in the U.S. Global Securities only upon receipt of
a certificate substantially in the form of Exhibit C from the proposed
transferor.
(ii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Securities Registrar of (x) the documents required by paragraph (i) and (y)
instructions in accordance with the Depositary's and the Securities
Registrar's procedures, the Securities Registrar shall reflect on its books
and records the date and a decrease in the principal amount at maturity of
the U.S. Global Security in an amount equal to the principal amount at
maturity of the beneficial interest in the U.S. Global Security to be
transferred, and (b) if the proposed transferee is an Agent Member, upon
receipt by the Securities Registrar of instructions given in accordance
with the Depositary's and the Securities Registrar's procedures, the
Securities Registrar shall reflect on its books and records the date and an
increase in the principal amount at maturity of the Offshore Global
Security in an amount equal to the principal amount at maturity of the U.S.
Physical Securities or the U.S. Global Security,
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as the case may be, to be transferred, and the Trustee shall cancel the
Physical Security, if any, so transferred or decrease the amount of the
U.S. Global Securities.
(e) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Securities Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Securities Registrar shall deliver
only Securities that bear the Private Placement Legend unless either (i) the
circumstances contemplated by paragraphs (a)(i)(x) or (d)(ii) of this Section
312 exist or (ii) there is delivered to the Securities Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(f) GENERAL. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture. The Securities Registrar shall not register a transfer of
any Security unless such transfer complies with the restrictions on transfer of
such Security set forth in this Indenture. In connection with any transfer of
Securities, each Holder agrees by its acceptance of the Securities to furnish
the Securities Registrar or the Company 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 a transaction not
subject to, the registration requirements of the Securities Act; PROVIDED that
the Securities Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The Securities Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 311 or this
Section 312. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Securities Registrar.
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ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities 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, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption 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,
and the Company or a Subsidiary Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, in
the case of either clause (1)(A) or (1)(B) the obligations of the Company to the
Trustee under Section 607 and, in the case of (1)(B) the obligations of the
Company under Sections 202, 303, 305, 306, 307, 311, 1001 and 1002 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or Article Fourteen or
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any, on)
any Security at its Maturity (whether or not such payment is prohibited by the
provisions of Article Twelve or Fourteen), including, without limitation,
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payment of any Excess Proceeds Payment or Change of Control Payment; or
(2) default in the payment of interest on any Security when the same
becomes due and payable (whether or not such payment is prohibited by the
provisions of Article Twelve or Fourteen), and continuance of such default for a
period of 30 consecutive days; or
(3) default in the performance, or breach, of any covenant or agreement of
the Company or any Subsidiary Guarantor in this Indenture or under the
Securities (other than a default specified in clause (1) or (2) above), and
continuance of such default or breach for a period of 30 consecutive days after
there has been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(4) there occurs with respect to any issue or issues of Indebtedness of
the Company or any of its Significant Subsidiaries having an outstanding
principal amount, in the aggregate for all such issues of all such Persons, of
$10.0 million or more, whether such Indebtedness exists on the date of this
Indenture or shall hereafter be created, (A) an event of default that has caused
the holder thereof to declare such Indebtedness to be due and payable prior to
its Stated Maturity and/or (B) the failure to make a principal payment at the
final (but not any interim) fixed maturity;
(5) any final judgment or order for the payment of money in excess of
$10.0 million in the aggregate for all such final judgments or orders against
all such Persons shall be rendered against the Company or any of its Significant
Subsidiaries and shall not be paid or discharged, and there shall be any period
of 60 consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders outstanding
and not paid or discharged against all such Persons to exceed $10.0 million
during which a stay of enforcement of such final judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect;
(6) a court having jurisdiction in the premises enters a decree or order
for (A) relief in respect of the Company or any of its Significant Subsidiaries
in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee,
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sequestrator or other similar official of the Company or any of its Significant
Subsidiaries or for all or substantially all of the property and assets of the
Company or any of its Significant Subsidiaries or (C) the winding up or
liquidation of the affairs of the Company or any of its Significant Subsidiaries
and, in each case, such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days;
(7) the Company or any of its Significant Subsidiaries (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consents to the entry of an order for relief in
an involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any of its Significant
Subsidiaries or for all or substantially all of the property and assets of the
Company or any of its Significant Subsidiaries or (C) effects any general
assignment for the benefit of creditors; or
(8) a Subsidiary Guarantee ceases to be in full force and effect (other
than in accordance with the terms of such Subsidiary Guarantee and this
Indenture) or a Subsidiary Guarantor denies or disaffirms in writing its
obligations under its Subsidiary Guarantee.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) occurs and is continuing, the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding
Securities, by written notice to the Company (and to the Trustee if such notice
is given by the Holders) may, and the Trustee at the request of such Holders
shall, declare the principal of (premium, if any) and accrued interest on the
Securities to be immediately due and payable. Upon any such declaration of
acceleration such principal (premium, if any) and accrued interest shall be
immediately due and payable; PROVIDED, that so long as the Credit Agreement is
in effect such declaration shall not become effective until the earlier of (A)
five Business Days after receipt of notice of such declaration by the
Representative of the holders of the Senior Indebtedness under the Credit
Agreement from the Trustee and (B) acceleration of the Senior Indebtedness under
the Credit Agreement.
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In the event of a declaration of acceleration because of an Event of
Default specified in Section 501(4) has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and annulled if the
event of default or payment default triggering such Event of Default pursuant to
Section 501(4) shall be remedied or cured by the Company and/or the relevant
Significant Subsidiaries or waived by the holders of the relevant Indebtedness
within 60 days after the declaration of acceleration with respect thereto.
If an Event of Default specified in Section 501(6) or 501(7) occurs,
the principal of (premium, if any) and accrued interest on the Outstanding
Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of at least a
majority in principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if:
(1) all existing Events of Default, other than the non-payment of the
principal of (premium, if any) and interest on the Securities which have become
due solely by such declaration of acceleration, have been cured or waived and
(2) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or, with respect to any Security
required to have
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been purchased pursuant to an Offer to Purchase made by the Company, at the
Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
borne by the Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company, any Subsidiary Guarantor or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, any Subsidiary
Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company, any
Subsidiary Guarantor or any other obligor upon the Securities, or the property
of the Company or its creditors or of any Subsidiary Guarantor or its creditors,
the Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
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liquidator, sequestrator or other similar official 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 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 607.
No provision of this Indenture 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
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; PROVIDED,
HOWEVER, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of the
creditors' committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS
WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of 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 Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Articles Twelve and Fourteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
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SECOND: To the extent provided in Article Twelve, to the holders of Senior
Indebtedness of the Company in accordance with Article Twelve, or if collected
from a Subsidiary Guarantor, to the extent provided in Article Fourteen, to the
holders of Senior Indebtedness of the Subsidiary Guarantor in accordance with
Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto, or as a court of competent jurisdiction
may direct.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder gives written notice to the Trustee of a continuing Event
of Default;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities make a written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders offer to the Trustee reasonable indemnity
satisfactory to the Trustee against any costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity does not comply with such request; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities;
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it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of an Offer to Purchase made by the Company and required to
be accepted as to such Security, on the Purchase Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition
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to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of at least a majority in aggregate principal amount of
the Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction shall not, as determined by the Trustee in good faith,
involve the Trustee in personal liability.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of at least a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past Default hereunder and its consequences, except a Default
(1) in the payment of the principal of (or premium, if any) or interest on
any Security (including any Security which is required to have been purchased
pursuant to an Offer to Purchase which has been made by the Company), or
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(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
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 514. 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or any Subsidiary
Guarantor.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and the Subsidiary Guarantors covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
each of the Company and the Subsidiary Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not 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.
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ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that
in the case of any default of the character specified in Section 501(3), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors of the Company or any Subsidiary Guarantor may be
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sufficiently evidenced by a Board Resolution of the Company or such Subsidiary
Guarantor;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting the Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company or any Subsidiary Guarantor,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) except for (i) the default under Sections 501(1) or (2) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or Event of Default
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unless specifically notified in writing of such event by the Company or the
Holders of not less than 25% in aggregate principal amount of the Securities
then outstanding; as used herein, the term "actual knowledge" means the actual
fact or statement of knowing, without any duty to make any investigation with
regard thereto.
SECTION 604. NOT RESPONSIBLE FOR RECITALS
OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the Subsidiary
Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Subsidiary Guarantors, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or Subsidiary Guarantees.
The Trustee shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company or any Subsidiary Guarantor, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Subsidiary Guarantor, as the case may
be.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which compensation
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shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or willful misconduct on
its part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Article Five hereof, the expenses
(including reasonable fees and expenses of its counsel) and the compensation for
the services in connection therewith are intended to constitute expense of
administration under any applicable bankruptcy law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in The City of Chicago, Illinois or the Borough of Manhattan, The
City of New York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of a supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its
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most recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 610. RESIGNATION AND REMOVAL;
APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent juris-
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diction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company, to the Subsidiary Guarantors and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company, any Subsidiary Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company and the
Subsidiary Guarantors shall execute any and all instruments for more fully and
certainly vesting in and
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confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION
OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company,
the Subsidiary Guarantors or any other obligor upon the Securities, the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company, the Subsidiary Guarantors or any such
other obligor.
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE
NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
PROVIDED that no such list need be furnished if the Trustee shall be the
Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company, the Subsidiary Guarantors and the Trustee that neither
the Company, the Subsidiary Guarantors nor the Trustee nor any agent of any of
them shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports (including
the reports referred to in Section 1015), and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; PROVIDED that any such information, document or
report required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. CONSOLIDATION, MERGER AND SALE OF ASSETS.
Neither the Company nor any Subsidiary Guarantor shall (A) consolidate
with, merge with or into, or sell, convey, transfer, lease or otherwise dispose
of all or substantially all of its property and assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions) to, any Person (other than a consolidation with or merger with or
into, or sale, conveyance, transfer, lease or disposition to, the Company or a
Wholly Owned Restricted Subsidiary that is a Subsidiary Guarantor and has a
positive net worth; PROVIDED that, in connection with any such transaction
between the Company or any Subsidiary Guarantor and the Company or such Wholly
Owned Restricted Subsidiary, no consideration (other than
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common stock in the surviving Person or the Company) shall be issued or
distributed to the stockholders of the Company or such Subsidiary Guarantor, as
the case may be) or (B) permit any Person to merge with or into the Company or
such Subsidiary Guarantor, as the case may be, unless:
(1) the Company or such Subsidiary Guarantor, as the case may be,
shall be the continuing Person, or the Person (if other than the Company or such
Subsidiary Guarantor) formed by such consolidation or into which the Company or
such Subsidiary Guarantor is merged or that acquired or leased such property and
assets of the Company or such Subsidiary Guarantor shall be a corporation
organized and validly existing under the laws of the United States of America or
any jurisdiction thereof and shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee, all obligations of the Company on the
Securities and under this Indenture or all obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee, as the case may be;
(2) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction on a pro
forma basis, the Company could Incur at lease $1.00 of Indebtedness (other than
Permitted Indebtedness);
(4) in the case of any sale, exchange or transfer of all or
substantially all of the assets of a Subsidiary Guarantor to an Affiliate of the
Company (other than a Wholly Owned Restricted Subsidiary that is a Subsidiary
Guarantor), the Company shall first have obtained a favorable written opinion
from a nationally recognized investment banking firm as to the fairness from a
financial point of view of such transaction to such Subsidiary Guarantor; and
(5) the Company delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with clause (3)
above) and an Opinion of Counsel, in each case stating that such consolidation,
merger or transfer and such supplemental indenture complies with this provision
and that all conditions precedent provided for herein relating to such
transaction have been complied with; PROVIDED that clause (3) above does not
apply if, in the good faith determination of the Board of Directors of the
Company, whose determination shall be evidenced by a Board Resolution, the
principal purpose of such transaction is to change the state
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of incorporation of the Company or the Subsidiary Guarantor, as the case may be;
and PROVIDED FURTHER, that any such transaction shall not have as one of its
purposes the evasion of the foregoing limitations.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company or a Subsidiary Guarantor with,
or merger of the Company or a Subsidiary Guarantor into, any other Person or any
sale, conveyance, transfer, lease or other disposition of all or substantially
all its properties and assets (as an entirety or substantially an entirety) to,
any Person in conformity with Section 801, the successor Person formed by such
consolidation or into which the Company or Subsidiary Guarantor is merged or to
which such sale, conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of,
such Company or Subsidiary Guarantor under this Indenture with the same effect
as if such successor Person had been named as the Company or Subsidiary
Guarantor herein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities and Subsidiary Guarantees.
ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES
WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution of the Company, the Subsidiary Guarantors, when authorized by
Board Resolutions of such Subsidiary Guarantors, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any
Subsidiary Guarantor and the assumption by any such successor of the covenants
of the Company or any Subsidiary Guarantor herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company; or
(3) to secure the Securities; or
(4) to comply with any requirements of the Commission in order to effect
and maintain the qualification of this Indenture under the Trust Indenture Act;
or
(5) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in uncertificated form; or
(6) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
PROVIDED that such action pursuant to this clause (6) shall not adversely affect
the interests of the Holders in any material respect; or
(7) to add new Subsidiary Guarantors pursuant to Section 1303.
SECTION 902. SUPPLEMENTAL INDENTURES
WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company, the Subsidiary Guarantors and the Trustee, the
Company, when authorized by a Board Resolution of the Company, the Subsidiary
Guarantors, when authorized by Board Resolutions of such Subsidiary Guarantors,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; PROVIDED, HOWEVER, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the principal amount thereof, or premium,
if any, or the rate of interest thereon, or change the place of payment where,
or the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of
any such payment on or
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after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date or, in the case of an Offer to Purchase which has been made,
on or after the applicable Purchase Date), modify the provisions of this
Indenture with respect to the subordination of the Securities in a manner that
could adversely affect the Holders, waive a default in the payment of principal
of (and premium, if any) or interest on the Securities or release any Subsidiary
Guarantor from any of its obligations under its Subsidiary Guarantee or this
Indenture other than in accordance with the provisions of this Indenture or
modify any provision relating to such release, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1017, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article Twelve or Article Fourteen in any
manner which would terminate or impair the rights of the holders of Senior
Indebtedness pursuant to such subordination provisions.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES
TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the Subsidiary
Guarantors shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee, the Company and the Subsidiary Guarantors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee, with the Subsidiary Guarantees
endorsed thereon executed by the Subsidiary Guarantors, in exchange for
Outstanding Securities.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after execution by the Company, the Subsidiary Guarantors and
the Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided in Section 106, setting forth in
general terms the substance of such supplemental indenture.
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SECTION 908. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of such Security, even if the notation of the
consent is not made on the Security. However, any such Holder or Subsequent
Holder may revoke the consent as to its Security or any portion thereof if the
Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
The Company shall pay interest on overdue principal (and premium, if
any) and interest on overdue installments of interest, to the extent lawful, at
the rate per annum specified in the Securities.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company or any Subsidiary
Guarantor in respect of the Securities, any Subsidiary Guarantee endorsed
thereon and this Indenture may be served. The Company and the Subsidiary
Guarantors will 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 or any Subsidiary Guarantor 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 Trust Office of the Trustee, and the Company and each Subsidiary
Guarantor hereby appoints the agent of the Trustee, Harris Trust Company of New
York, 77 Water Street,
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New York, New York 10005, as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities 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 obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY
PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in THE WALL STREET JOURNAL or
the NEW YORK TIMES (National edition) and mail to each Holder, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification, publication and
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
In the event that the Company becomes aware of any Default, the
Company promptly after becoming aware thereof, will give written notice thereof
to the Trustee.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating that the signers thereof have conducted or supervised a
review of the activities of the Company and its Restricted Subsidiaries and of
the Company's and its Restricted Subsidiaries' performance under this Indenture
and that, to the best of such signer's knowledge, based upon such review, the
Company has fulfilled all obligations hereunder or, if there has been a default
in fulfillment of
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any such obligation, specifying each such default and the nature and status
thereof.
SECTION 1005. EXISTENCE.
Subject to this Article and Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect the existence, rights (charter and statutory), material licenses and
franchises of the Company and each Restricted Subsidiary; PROVIDED, HOWEVER,
that the Company shall not be required to preserve any such right, license or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the Restricted Subsidiaries and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES; INSURANCE.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Restricted Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including but not limited to,
product liability insurance and public liability insurance, with reputable
insurers, in such amounts, with such deductibles and by such methods as shall be
customary for corporations similarly situated in the industry in which the
Company or any such Restricted Subsidiary, as the case may be, is then
conducting business.
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SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Restricted Subsidiary; PROVIDED, HOWEVER, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which adequate
reserves have been established.
SECTION 1008. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than Permitted Indebtedness);
PROVIDED that the Company may Incur Indebtedness if, on the date of such
Incurrence, after giving effect to the Incurrence of such Indebtedness and the
receipt and application of the proceeds therefrom, the Consolidated Fixed Charge
Coverage Ratio exceeds 2.25:1 if such Indebtedness is Incurred on or prior to
October 1, 1999 and 2.5:1 if such Indebtedness is Incurred thereafter.
Notwithstanding the foregoing, the Company and, to the extent provided
below, any Restricted Subsidiary may Incur the following Indebtedness (each, a
"Permitted Indebtedness"):
(i) Indebtedness of the Company and/or any Restricted Subsidiary
pursuant to the Credit Agreement in an aggregate principal amount at
any time outstanding not to exceed (A) $100.0 million under the Term
Loan Facility (less the amount thereof which has been permanently
repaid as provided under Section 1012) and (B) the greater of (1)
$225.0 million (less the amount of net proceeds which have been
received in connection with a Permitted Receivables Financing;
PROVIDED, that such reduction shall apply only for so long as a
Permitted Receivables Financing is in effect) and (2) the aggregate
Borrowing Base under the Revolving Loan Facility;
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(ii) Indebtedness of the Company or any Restricted Subsidiary to
the Company or any Wholly Owned Restricted Subsidiary as long as such
Indebtedness continues to be owed to the Company or any Wholly Owned
Restricted Subsidiary;
(iii) Indebtedness of the Company pursuant to the Securities and
Indebtedness of any Subsidiary Guarantor pursuant to a Subsidiary
Guarantee of the Securities;
(iv) Indebtedness ("Permitted Refinancing Indebtedness") issued
in exchange for, or the net proceeds of which are used to refinance or
refund, then outstanding Indebtedness (Incurred under the first
paragraph of this Section or under clause (iii), (vi), (vii), (viii)
or (xii) of this paragraph), and any refinancings thereof in an amount
not to exceed the amount so refinanced or refunded (plus premiums,
accrued interest, fees and expenses); PROVIDED that Indebtedness the
proceeds of which are used to refinance or refund the Securities or
Indebtedness that is pari passu with, or subordinated in right of
payment to, the Securities shall only be permitted under this clause
(iv) if (A) in case the Securities are refinanced in part or the
Indebtedness to be refinanced is pari passu with the Securities, such
new Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is outstanding, is
expressly made pari passu with, or subordinate in right of payment to,
the remaining Securities, (B) in case the Indebtedness to be
refinanced is subordinated in right of payment to the Securities, such
new Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is outstanding, is
expressly made subordinate in right of payment to the Securities at
least to the extent that the Indebtedness to be refinanced is
subordinated to the Securities and (C) such new Indebtedness,
determined as of the date of Incurrence of such new Indebtedness, does
not mature prior to the Stated Maturity of the Indebtedness to be
refinanced or refunded, and the Average Life of such new Indebtedness
is at least equal to the remaining Average Life of the Indebtedness to
be refinanced or refunded; and PROVIDED FURTHER that in no event may
Indebtedness of the Company be refinanced pursuant to this clause (iv)
by means of any Indebtedness of any Restricted Subsidiary;
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(v) Indebtedness of the Company or any Restricted Subsidiary in
respect of performance bonds, letters of credit, bankers' acceptances
and surety or appeal bonds issued in the ordinary course of business;
(vi) Acquired Indebtedness of any Restricted Subsidiary; PROVIDED
that, with respect to this clause (vi), after giving effect to the
Incurrence thereof, the Company could Incur at least $1.00 of
Indebtedness (other than Permitted Indebtedness);
(vii) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the Issue Date (other than Indebtedness described in
clause (i), (ii) or (iii) of this paragraph);
(viii) Indebtedness of the Company or any Restricted Subsidiary
represented by Capital Lease Obligations, mortgage financings or
purchase money obligations, in each case Incurred for the purpose of
financing not more than 80% of the purchase price or cost of
construction or improvement of property used in an Aluminum Business
or Incurred to refinance any such purchase price or cost of
construction or improvement, in each case Incurred no later than 365
days after the date of such acquisition or the date of completion of
such construction or improvements; PROVIDED that the aggregate
principal amount of any Indebtedness Incurred pursuant to this clause
(viii) and any refinancing thereof at any one time outstanding shall
not exceed $40.0 million;
(ix) Indebtedness of a Securitization Subsidiary pursuant to a
Permitted Receivables Financing; PROVIDED that after giving effect to
the Incurrence thereof, the Company could Incur at least $1.00 of
Indebtedness under the first paragraph or clause (i) of this Section
1008;
(x) Indebtedness of the Company or any Restricted Subsidiary
under Materials Hedging Contracts entered into in the ordinary course
of business for the purpose of limiting risks to the Company or any
Restricted Subsidiary of changes in prices for aluminum or commodities
relating to the Aluminum Business;
(xi) Indebtedness consisting of Interest Rate Agreements directly
related to Indebtedness permitted to be Incurred by the Company or any
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Restricted Subsidiary pursuant to this Indenture or consisting of
Currency Agreements entered into in the ordinary course of business;
(xii) Indebtedness of the Company or any Restricted Subsidiary
represented by any industrial revenue bonds, pollution control bonds
or other tax exempt financing; PROVIDED, that the aggregate amount of
any Indebtedness Incurred pursuant to this clause (xii) and any
refinancing thereof at any one time outstanding shall not exceed $10.0
million;
(xiii) Guarantees by any Restricted Subsidiary of Indebtedness
Incurred by the Company in compliance with the provisions set forth
under the first paragraph or clause (xiv) of this paragraph of this
Section 1008 may be guaranteed pursuant to this clause (xiii); and
(xiv) Indebtedness of the Company or any Restricted Subsidiary in
an aggregate principal amount at any time outstanding not to exceed
$40.0 million.
For purposes of determining compliance with this Section 1008, (i) in
the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described in the clauses of the preceding paragraph,
the Company, in its sole discretion, shall classify such item of Indebtedness
and only be required to include the amount and type of such Indebtedness in one
of such clauses, (ii) an item of Indebtedness may be divided and classified in
more than one of the types of Indebtedness described above and (iii) the amount
of Indebtedness issued at a price that is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
conformity with GAAP.
Notwithstanding the foregoing, the Company will not, and will not
permit any Subsidiary Guarantor to, Incur (i) any Indebtedness if such
Indebtedness is subordinate or junior in ranking in any respect to any Senior
Indebtedness of the Company or such Subsidiary Guarantor, as the case may be,
unless such Indebtedness is Senior Subordinated Indebtedness of the Company or
such Subsidiary Guarantor, as the case may be, or is expressly subordinate in
right of payment to Senior Subordinated Indebtedness of the Company or such
Subsidiary Guarantor, as the case may be or (ii) any Secured Indebtedness that
is not Senior Indebtedness unless contemporaneously therewith effective
provision is made to secure the Securities or the Subsidiary Guarantees, as the
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case may be, equally and ratably with such Secured Indebtedness for so long as
such Secured Indebtedness is secured by a Lien.
Notwithstanding the foregoing, the Company will not permit either
CasTech Aluminum Group Inc. or Barmet Aluminum Corporation to incur any
Indebtedness other than Indebtedness described in clauses (i), (ii), (v), (x)
and (xi) of the definition of Permitted Indebtedness above prior to CasTech
Aluminum Group Inc. or Barmet Aluminum Corporation, as the case may be, becoming
a Subsidiary Guarantor.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, after the Issue Date (such payments and other
actions described in clauses (i) through (iv) being collectively referred to as
"Restricted Payments"):
(i) declare or pay any dividend or make any distribution on its
Capital Stock (other than dividends or distributions payable solely in
shares of its or such Restricted Subsidiary's Capital Stock (other
than Redeemable Stock) or in options, warrants or other rights to
acquire such shares of Capital Stock) held by Persons other than the
Company or any of its Wholly Owned Restricted Subsidiaries;
(ii) purchase, redeem, retire or otherwise acquire for value any
shares of Capital Stock of the Company or any Restricted Subsidiary
(including options, warrants or other rights to acquire such shares of
Capital Stock) held by Persons other than the Company or any of its
Wholly Owned Restricted Subsidiaries;
(iii) make any voluntary or optional principal payment, or
voluntary or optional redemption, repurchase, defeasance or other
acquisition or retirement for value of any Subordinated Indebtedness;
or
(iv) make any Investment that is a Restricted Investment;
if, at the time of, and after giving effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be continuing, (B) the
Company could not
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Incur at least $1.00 of Indebtedness (other than Permitted Indebtedness) or
(C) the aggregate amount (without duplication) expended for all Restricted
Payments (the amount so expended, if other than in cash, to be determined in
good faith by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution) after the Issue Date shall
exceed the sum (without duplication) of (1) 50% of the aggregate amount of the
Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is
a loss, minus 100% of such amount) (determined by excluding income created by
transfers of assets received by the Company or a Restricted Subsidiary from an
Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken
as one accounting period) beginning on October 1, 1996 and ending on the last
day of the Company's last fiscal quarter ended before the Transaction Date plus
(2) the aggregate net proceeds (including the Fair Market Value of non-cash
proceeds as determined by the Board of Directors of the Company) received by the
Company from the issuance and sale permitted by this Indenture of its Capital
Stock (other than Redeemable Stock) to a Person who is not a Restricted
Subsidiary, including an issuance or sale permitted by this Indenture for cash
or other property upon the conversion of any Indebtedness of the Company
subsequent to the Issue Date, or from the issuance of any options, warrants or
other rights to acquire Capital Stock of the Company (in each case, exclusive of
any Redeemable Stock or any options, warrants or other rights that are
redeemable at the option of the holder, or are required to be redeemed, prior to
the Stated Maturity of the Securities) plus (3) an amount equal to the net
reduction in Investments in Unrestricted Subsidiaries resulting from payments of
interest on Indebtedness, dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or any Restricted Subsidiary
from Unrestricted Subsidiaries, or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the
definition of "Investments"), not to exceed, in the case of any Unrestricted
Subsidiary, the amount of Investments previously made by the Company and any
Restricted Subsidiary in such Unrestricted Subsidiary, plus (4) $10.0 million.
The provisions of the foregoing paragraph shall not prohibit: (i) the
payment of any dividend within 60 days after the date of declaration thereof if,
at such date of declaration, such payment would comply with the foregoing
paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness including premium, if any, and
accrued and unpaid interest, with the proceeds of, or in exchange for, Permitted
Refinancing Indebtedness; (iii) the repurchase,
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redemption or other acquisition of Capital Stock of the Company in exchange for,
or out of the proceeds of a substantially concurrent offering of, shares of
Capital Stock (other than Redeemable Stock) of the Company; (iv) the acquisition
of Subordinated Indebtedness of the Company in exchange for, or out of the
proceeds of a substantially concurrent offering of, shares of the Capital Stock
of the Company (other than Redeemable Stock); (v) the purchase, redemption,
acquisition, cancellation or other retirement for value of shares of Capital
Stock of the Company, options on any such shares or related stock appreciation
rights or similar securities held by officers, directors or employees or former
directors, officers or employees (or their transferees, estates or beneficiaries
under their estates), upon death, disability, retirement, severance or
termination of employment or service or pursuant to any agreement under which
such shares of stock or related rights were issued; PROVIDED that the aggregate
cash consideration paid for such purchase, redemption, acquisition, cancellation
or other retirement of such shares of Capital Stock or related rights after the
Issue Date does not exceed an aggregate amount of $6.0 million and that any
consideration in excess of such $6.0 million is in the form of Permitted
Indebtedness; (vi) the redemption of any Stock Purchase Rights issued under the
Stockholder Protection Rights Agreement; (vii) the payment by the Company of one
or more cash dividends; PROVIDED that (A) the aggregate amount of such dividends
does not exceed $8.0 million and (B) at the time of such payment, a majority of
the Voting Stock of the Company shall be held by persons other than Affiliates
of the Company; (viii) payments or distributions pursuant to or in connection
with a consolidation, merger or transfer of assets that complies with Article
Eight; and (ix) payments pursuant to the Plan of Merger as in effect on the
Issue Date or pursuant to the assertion of appraisal rights in connection with
the merger contemplated thereby; PROVIDED that, in each case except in clauses
(i), (iii) and (ix), no Default or Event of Default shall have occurred and be
continuing or occur as a consequence of the actions or payments set forth
therein.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payments referred to in clauses (i) through (iv) and
(ix) thereof) shall be included once in calculating whether the conditions of
clause (C) of the second preceding paragraph have been met with respect to any
subsequent Restricted Payments. For purposes of determining compliance with
this Section 1009, in the event that a Restricted Payment meets the criteria of
more than one of the types of Restricted Payments described in clauses (i)
through (ix) of the preceding paragraph, the Company, in its sole discretion,
shall classify such Restricted Payment and only be required to include the
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amount and type of such Restricted Payment in one of such clauses.
In the event of an issuance of Capital Stock of the Company and
(i) the repurchase, redemption or other acquisition of Capital Stock in exchange
for or out of the proceeds of such issuance or (ii) the redemption, repurchase,
defeasance or other acquisition or retirement of Subordinated Indebtedness with
the proceeds of or in exchange for such issuance, then, in calculating whether
the conditions of clause (C) of the third preceding paragraph have been met with
respect to any subsequent Restricted Payments, the proceeds of any such issuance
shall be included under such clause (C) only to the extent such proceeds are not
applied as described in clause (i) or (ii) of this paragraph.
SECTION 1010. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions
permitted by applicable law on any Capital Stock of such Restricted Subsidiary
owned by the Company or any other Restricted Subsidiary, (ii) pay any
Indebtedness or other obligations owed to the Company or any other Restricted
Subsidiary, (iii) make loans or advances to the Company or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the Issue Date in the Credit Agreement, this
Indenture or any other agreements in effect on the Issue Date, and any
amendments, supplements, extensions, refinancings, renewals, restatements,
replacements or modifications of any of the foregoing; PROVIDED that the
encumbrances and restrictions in any such amendments, supplements, extensions,
refinancings, renewals, restatements, replacements or modifications are no less
favorable in any material respect to the Holders than those encumbrances or
restrictions that are then in effect and that are being amended, supplemented,
extended, refinanced, renewed, restated, replaced or modified; (ii) existing
under or by reason of applicable law; (iii) existing with respect to any Person
or the property or assets of such Person acquired by the Company or
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any Restricted Subsidiary and existing at the time of such acquisition, which
encumbrances or restrictions (A) are not applicable to any Person or the
property or assets of any Person other than such Person or the property or
assets of such Person so acquired and (B) were not put in place in anticipation
of such acquisition, and any amendments, supplements, extensions, refinancings,
renewals, restatements, replacements or modifications of any of the foregoing;
PROVIDED that the encumbrances and restrictions in any such amendments,
supplements, extensions, refinancings, renewals, restatements, replacements or
modifications are no less favorable in any material respect to the Holders than
those encumbrances or restrictions that are then in effect and that are being
amended, supplemented, extended, refinanced, renewed, restated, replaced or
modified; (iv) in the case of clause (iv) of the preceding paragraph, arising or
agreed to in the ordinary course of business (A) that restrict in a customary
manner the subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture or (C) not
relating to any Indebtedness and, in each of case (A), (B) or (C), that do not,
individually or in the aggregate, detract from the value of property or assets
of the Company or any Restricted Subsidiary in any manner material to the
Company or any Restricted Subsidiary; (v) with respect to a Restricted
Subsidiary and imposed pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary; or (vi) with respect to a
Securitization Subsidiary, pursuant to an agreement relating to Indebtedness of
a Securitization Subsidiary which is permitted under Section 1008 or pursuant to
an agreement relating to a Permitted Receivables Financing by a Securitization
Subsidiary. Nothing contained in the preceding paragraph shall prevent the
Company or any Restricted Subsidiary from restricting the sale or other
disposition of property or assets of the Company or any of its Restricted
Subsidiaries that secure Indebtedness of the Company or any of its Restricted
Subsidiaries.
SECTION 1011. LIMITATION ON ISSUANCE OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES.
The Company will not permit any Restricted Subsidiary, directly or
indirectly, to issue or sell any shares of its Capital Stock (including options,
warrants or
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other rights to purchase shares of such Capital Stock) except (i) to the Company
or a Wholly Owned Restricted Subsidiary, (ii) if, immediately after giving
effect to such issuance or sale, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary or (iii) to the extent such shares represent
directors' qualifying shares or shares required by applicable law to be held by
a Person other than the Company or a Restricted Subsidiary.
SECTION 1012. LIMITATION ON ASSET SALES.
The Company will not, and will not permit any Restricted Subsidiary
to, effect any Asset Disposition unless:
(i) such Asset Disposition is effected at Fair Market Value (as
determined by the Board of Directors of the Company);
(ii) in the case of any Asset Disposition or series of related
Asset Dispositions for a total consideration in excess of $5.0
million, at least 75% of the consideration is received in cash; and
(iii) in the event and to the extent that the Net Cash Proceeds
received by the Company or any of its Restricted Subsidiaries from one
or more Asset Dispositions occurring on or after the Issue Date in any
period of 12 consecutive months exceed the lesser of (A) $20.0 million
or (B) 10% of Consolidated Net Tangible Assets as of the beginning of
such 12-month period, then the Company shall or shall cause the
relevant Restricted Subsidiary to within 12 months after the date Net
Cash Proceeds so received exceed the lesser of (x) $20.0 million or
(y) such 10% of Consolidated Net Tangible Assets, apply an amount
equal to such excess Net Cash Proceeds as provided in the following
paragraph.
An amount equal to such excess Net Cash Proceeds shall be applied (i)
first, to the extent the Company or such Restricted Subsidiary elects or is
otherwise required to, to permanently repay Senior Indebtedness of the Company
or Guarantor Senior Indebtedness of any Restricted Subsidiary, in each case
owing to a Person other than the Company or any of its Restricted Subsidiaries;
PROVIDED that notwithstanding the foregoing, if, after first applying such
excess Net Cash Proceeds to permanently repay all of the then outstanding Senior
Indebtedness other than Indebtedness under the Revolving Loan Facility, the
application of any
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remaining portion of such excess Net Cash Proceeds to repay Senior Indebtedness
under the Revolving Loan Facility shall satisfy the requirements of this clause
(i) whether or not such repayment results in a permanent reduction in the
commitments available under such Revolving Loan Facility, (ii) second, to the
extent of the balance of such excess Net Cash Proceeds after application in
accordance with clause (i), and to the extent the Company elects, to invest such
amount (or enter into a definitive agreement committing to so invest within 12
months after the date of such agreement), in property or assets that are to be
used in the Aluminum Business (as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive and evidenced
by a Board Resolution) and (iii) third, to the extent of the balance of such
excess Net Cash Proceeds after application in accordance with clauses (i) and
(ii), offer to apply (no later than the end of the 12-month period referred to
in clause (iii) of the preceding paragraph) such excess Net Cash Proceeds (to
the extent not applied pursuant to clauses (i) and (ii) above) ("Excess
Proceeds") as provided in the following paragraph.
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined
below) totals at least $10.0 million, the Company will, not later than the
fifteenth Business Day of such month, mail an Offer (an "Excess Proceeds Offer")
with respect to an Offer to Purchase from the Holders on a pro rata basis an
aggregate principal amount of Securities equal to the Excess Proceeds on such
date, at a purchase price equal to 100% of the principal amount of the
Securities plus accrued interest to the Purchase Date (the "Excess Proceeds
Payment"). Any Offer to Purchase shall be governed by and effected in
accordance with the Offer for such Offer to Purchase.
The Company will publicly announce the results of the Excess Proceeds
Offer as soon as practicable after the Purchase Date.
For purposes of this Section, any Excess Proceeds not required to
purchase Securities tendered in response to the Offer to Purchase shall no
longer constitute Net Cash Proceeds received from Asset Dispositions.
Notwithstanding the foregoing provisions of this Section 1012, the
Company and its Restricted Subsidiaries may, in the ordinary course of business,
exchange all or a portion of their assets for assets which are of a type used in
the Aluminum Business or Capital Stock of a Person all or substantially all of
whose assets are of a type used in the Aluminum Business, or a combination of
any such assets and
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cash; PROVIDED that (i) no Default or Event of Default shall have occurred and
be continuing or occur as a consequence of such Asset Disposition, (ii) a
majority of the Board of Directors of the Company who are disinterested in the
subject matter of the Asset Disposition shall have pursuant to a Board
Resolution determined that such Asset Disposition is fair to the Company or such
Restricted Subsidiary, as the case may be, (iii) any cash received pursuant to
any such Asset Disposition shall be applied in the manner applicable to excess
Net Cash Proceeds from an Asset Disposition as set forth in the preceding
paragraphs of this Section 1012 and (iv) in the event the Company or the
Restricted Subsidiary, as the case may be, receives any Capital Stock of a
Person pursuant to such exchange, (A) such Person becomes a Restricted
Subsidiary of the Company by virtue of such exchange or (B) such exchange
constitutes an Investment excepted from the definition of Restricted Investment
pursuant to clause (x) of the definition thereof.
SECTION 1013. LIMITATION ON TRANSACTIONS WITH STOCKHOLDERS AND AFFILIATES.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) with any Person known to
the Company to be the holder (or any Affiliate of such holder) of 10% or more of
any class of Capital Stock of the Company or with any Affiliate of the Company
or any Restricted Subsidiary (each, a "Related Party Transaction"), except upon
fair and reasonable terms no less favorable to the Company or such Restricted
Subsidiary than could be obtained, at the time of such transaction or at the
time of the execution of the agreement providing therefor, in a comparable
arm's-length transaction with a Person that is not such a holder or an
Affiliate.
Without limiting the foregoing, (i) any Related Party Transaction or
series of Related Party Transactions with an aggregate value in excess of $5.0
million must first be approved by a majority of the Board of Directors of the
Company who are disinterested in the subject matter of the transaction pursuant
to a Board Resolution, and (ii) with respect to any Related Party Transaction or
series of Related Party Transactions with an aggregate value in excess of $15.0
million, the Company must first obtain a favorable written opinion from a
nationally recognized investment banking firm as to the fairness from a
financial point of view of such transaction to the Company or such Restricted
Subsidiary, as the case may be.
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The foregoing limitation does not limit, and shall not apply to:
(i) the payment of reasonable and customary regular fees to directors of the
Company who are not employees of the Company; (ii) any Restricted Payments not
prohibited by Section 1009; (iii) transactions in connection with a Permitted
Receivables Financing; (iv) any loans or advances by the Company to employees of
the Company or a Restricted Subsidiary in the ordinary course of business and in
furtherance of the Company's business, in an aggregate amount not to exceed $2.0
million at any one time outstanding; (v) any grant of stock options or other
rights to employees or directors of the Company or any of its Subsidiaries
pursuant to benefit plans or agreements adopted or authorized by the Company's
non-employee directors; (vi) payments by the Company or a Restricted Subsidiary
to employees of the Company or any of its Subsidiaries (A) of salary, bonus and
other ordinary compensation in the ordinary course of business and (B) pursuant
to employment agreements entered into in compliance with the foregoing two
paragraphs; (vii) any transaction between the Company and any Wholly Owned
Restricted Subsidiary or between any Wholly Owned Restricted Subsidiaries; and
(viii) the consummation of the transactions contemplated by the Plan of Merger
as in effect on the Issue Date.
SECTION 1014. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of a
Security shall have the right to have such Security repurchased by the Company
on the terms and conditions precedent set forth in this Section 1014 and this
Indenture. The Company shall, within 30 days following a Change of Control,
mail an Offer ("Change of Control Offer") with respect to an Offer to Purchase
all Outstanding Securities at a purchase price equal to 101% of the principal
amount thereof plus accrued interest to the Purchase Date (the "Change of
Control Payment"). Any Offer to Purchase shall be governed by and effected in
accordance with the Offer for such Offer to Purchase.
(b) Prior to the mailing of any Change of Control Offer, but in any
event within 30 days following any Change of Control, the Company will (i) repay
in full all indebtedness of the Company that would prohibit the repurchase of
the Securities pursuant to the Offer to Purchase or (ii) obtain any requisite
consents under instruments governing any such indebtedness of the Company to
permit the repurchase of the Securities pursuant to the Offer to Purchase.
Compliance with the covenant in the preceding sentence shall be a condition
precedent to the
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obligation of the Company to repurchase Securities pursuant to this Section
1014.
The Company will publicly announce the results of the Change of
Control Offer as soon as practicable after the applicable Purchase Date.
SECTION 1015. PROVISION OF FINANCIAL INFORMATION.
Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company will file with the Commission (if permitted) and provide the Trustee and
the Holders with such annual reports and such information, documents and other
reports as are specified in Sections 13 or 15(d) of the Exchange Act (excluding,
however, information with respect to benefit plans and long-term compensation
arrangements and, in the case of Holders of the Securities, exhibits to such
reports specified in Sections 13 and 15(d) of the Exchange Act) and applicable
to a U.S. corporation subject to the reporting requirements of such Sections,
such information, documents and other reports to be so filed and provided at the
times specified for the filing of such information, documents and reports under
such Sections.
SECTION 1016. CERTAIN POSITIVE CREDIT EVENTS.
If an Investment Grade Rating is assigned to the Securities, then at
the election of the Board of Directors of the Company, which election shall be
evidenced by a Board Resolution, the following provisions shall be effective as
of the date of such Board Resolution:
(i) the Company shall be released from its obligations under Sections
1008 through 1012, inclusive, and clause (3) of Section 801, and the occurrence
of any event specified in Section 501(3) with respect to such Sections and
clause shall be deemed not to be or result in an Event of Default;
(ii) the Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, permit to exist any Lien on any of its
property or assets (including Capital Stock of a Restricted Subsidiary) (other
than Permitted Liens), without providing that the Securities and, in the case of
each Subsidiary Guarantor, the Subsidiary Guarantee of that Subsidiary
Guarantor, shall be equally and ratably secured; and
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(iii) the Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale/Leaseback Transaction unless (A) the Company
or such Restricted Subsidiary (1) would be entitled to create a Lien on such
property or assets securing Indebtedness in an amount equal to the Attributable
Debt with respect to such Sale/Leaseback Transaction without equally and ratably
securing the Securities pursuant to the covenant described under clause (ii)
above, or (2) applies the proceeds of such transaction within 12 months to (x)
the purchase or acquisition of property or assets that are to be used in the
Aluminum Business (as determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive and evidenced by a Board
Resolution) or (y) the redemption or repayment of Senior Indebtedness, and (B)
the net proceeds received by the Company or any Restricted Subsidiary in
connection with such Sale/Leaseback Transaction are at least equal to the fair
value (as determined by the Board of Directors of the Company) of such property
or assets.
SECTION 1017. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1006, 1008 to 1013, inclusive, 1015
and 1016, if before the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect; PROVIDED, HOWEVER, with respect
to an Offer to Purchase as to which an Offer has been mailed, no such waiver may
be made or shall be effective against any Holder tendering Securities pursuant
to such Offer, and the Company may not omit to comply with the terms of such
Offer as to such Holder.
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 Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or agreed to be paid to all Holders of the Securities that consent, waive
or agree
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to amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may not be redeemed prior to October 1, 2001 except
that the Securities may be redeemed at the election of the Company at any time
prior to October 1, 1999, in an aggregate principal amount not exceeding $43.75
million with the proceeds of one or more Public Equity Offerings, at the
Redemption Price specified in the form of Security hereinbefore set forth for
such redemptions, together with accrued interest to the Redemption Date (subject
to the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date); PROVIDED that (i) at least $65.0 million aggregate principal amount of
the Securities remain Outstanding after each such redemption and (ii) any such
redemption occurs within 60 days of the date of the closing of such Public
Equity Offering.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after October 1, 2001, at
the Redemption Prices specified in the form of Security hereinbefore set forth
for such redemptions, together with accrued interest to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date).
SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or otherwise,
as permitted by any provision of this Indenture, shall be made in accordance
with such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company
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shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed. In the case of any redemption at the election of the Company pursuant
to the first paragraph of Section 1101, the Company shall furnish the Trustee
with an Officers' Certificate to the effect that all conditions precedent to
such redemption have been met.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at the address of such Holder
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and that interest thereon will
cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal
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(and premium, if any) shall, until paid, bear interest from the Redemption Date
at the rate borne by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, with the Subsidiary Guarantees endorsed thereon executed
by the Security Guarantors, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. SECURITIES SUBORDINATE TO SENIOR
INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article (subject to the provisions
of Article Four and Article Fifteen), the indebtedness represented by the
Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness of the Company.
SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION,
ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company,
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whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event
specified in (a), (b) or (c) above (each such event, if any, herein sometimes
referred to as a "Proceeding") the holders of Senior Indebtedness of the Company
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all Senior Indebtedness of the Company, or provision shall
have been made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness of the Company, before
the Holders of the Securities are entitled to receive any payment or
distribution of any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company subordinated to
the payment of the Securities), on account of principal of (or premium, if any)
or interest on the Securities or on account of any purchase or other acquisition
of Securities by the Company or any Subsidiary of the Company (all such
payments, distributions, purchases and acquisitions herein referred to,
individually and collectively, as a "Securities Payment"), and to that end the
holders of Senior Indebtedness of the Company shall be entitled to receive, for
application to the payment thereof, any Securities Payment which may be payable
or deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Indebtedness of the Company is paid in full
or payment thereof provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness of the Company, and if
such fact shall, at or prior to the time of such Securities Payment, have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event such Securities Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness of the Company remaining
unpaid, to the extent necessary to pay all Senior Indebtedness of the Company in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness of the Company.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the
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liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its properties and assets to another Person upon
the terms and conditions set forth in Article Eight shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or which acquires by
conveyance or transfer such properties and assets, as the case may be, shall, as
a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
SECTION 1203. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN
DEFAULT.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment or deposit under
Section 1504 shall be made unless and until (i) such Senior Payment Default
shall have been cured or waived or shall have ceased to exist or (ii) all
amounts then due and payable in respect of Senior Indebtedness shall have been
paid in full, or provision shall have been made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness or (iii) the Company and the Trustee have received written notice
approving such Securities Payment or deposit from the holders or a
Representative of the holders of the Designated Senior Indebtedness or Senior
Indebtedness with respect to which the Senior Payment Default has occurred and
is continuing. "Senior Payment Default" means any default in the payment of
Designated Senior Indebtedness of the Company or Senior Indebtedness of the
Company with an aggregate principal amount in excess of $5.0 million then
outstanding when such payment is due, whether at the Stated Maturity of any such
payment or by declaration of acceleration, call for redemption or otherwise.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, upon the receipt by the Trustee
(with a copy to the Company) of written notice (a "Blockage Notice") of such
Senior Nonmonetary Default from holders or a Representative of holders of
Designated Senior Indebtedness, no Securities Payment or deposit under Section
1504 shall be made during the period (the "Payment Blockage Period") commencing
on the date of such receipt of such Blockage Notice and ending on the earlier of
(i) the date on which such Designated Senior Debt to which such default relates
shall have been discharged or such default shall have been cured or waived or
shall have ceased to exist, (ii) the 179th day after the date of such receipt of
such Blockage Notice, or (iii) the
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date on which such Payment Blockage Period shall have been terminated by written
notice to the Company and the Trustee from the Person or Persons who gave such
Blockage Notice. No more than one Payment Blockage Period may be commenced with
respect to the Securities during any consecutive 360-day period and there shall
be a period of at least 181 consecutive days in each 360-day period when no
Payment Blockage Period is in effect. For all purposes of this paragraph, no
Senior Nonmonetary Default that existed or was continuing on the date of
commencement of any Payment Blockage Period shall be, or be made, the basis for
the commencement of a subsequent Payment Blockage Period by holders or a
Representative of holders of Designated Senior Indebtedness of the Company
unless such Senior Nonmonetary Default shall have been cured or waived for a
period of not less than 90 consecutive days. "Senior Nonmonetary Default" means
the occurrence or existence and continuance of any event of default under the
terms of any instrument pursuant to which any Designated Senior Indebtedness of
the Company is outstanding, permitting holders or a Representative of holders of
Designated Senior Indebtedness to declare such Designated Senior Indebtedness
due and payable prior to the date on which it would otherwise become due and
payable, other than a Senior Payment Default.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any of the Holders, or the Trustee
or any of the Holders shall receive any Securities Payment, prohibited by the
foregoing provisions of this Section such Securities Payment shall be held in
trust for the benefit of the holders of Senior Indebtedness of the Company and
paid over and delivered forthwith to the holders or Representatives of holders
of Senior Indebtedness as their interest may appear for application to payment
of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
SECTION 1204. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent at any time except during the pendency of
any Proceeding referred to in Section 1202 or under the conditions described in
Section 1203 (a) the Company from making Securities Payments or a deposit under
Section 1504 or (b) the application by the Trustee of any money deposited with
it hereunder to Securities Payments or the retention of such Securities Payments
by the Holders.
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SECTION 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS OF THE COMPANY.
Upon the payment in full of all amounts due or to become due on or in
respect of Senior Indebtedness, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness of the Company, the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders of such
Senior Indebtedness of the Company pursuant to the provisions of this Article
(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is entitled
to like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness of the Company to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness of the Company
until the principal of (and premium, if any) and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of the Company of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness of the Company by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness of the
Company.
SECTION 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
(a) The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness of the Company on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness of the Company and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or
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(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness of the Company; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness of the Company to receive cash, property
and securities otherwise payable or deliverable to the Trustee or such Holder.
(b) Without limiting the generality of the foregoing, nothing
contained in this Article will restrict the right of the Trustee or the Holders
to take any action to declare the Securities to be due and payable prior to
their Stated Maturity pursuant to Section 502 of this Indenture or to pursue any
rights or remedies hereunder.
SECTION 1207. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any non-compliance by the Company with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Indebtedness of the Company, do any one or more of
the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or
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renew or alter, Senior Indebtedness of the Company, or otherwise amend or
supplement in any manner Senior Indebtedness of the Company or any instrument
evidencing the same or any agreement under which Senior Indebtedness of the
Company is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness of
the Company; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness of the Company; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1209. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness of the Company or from any trustee
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; PROVIDED, HOWEVER, that if the Trustee shall
not have received the notice provided for in this Section at or prior to 5:00
p.m. (Chicago time) the Business Day prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or interest on
any Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it after 5:00
p.m. (Chicago time) on the Business Day prior to such date; PROVIDED that
nothing herein shall in any way limit the obligation of the Holders to pay over
and deliver any Securities Payment in the circumstances specified in Sections
1202 and 1203.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Company (or a
trustee therefor) to establish that such notice has been given by a
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holder or a Representative of holders of Senior Indebtedness of the Company. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness of the Company held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1210. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness of the Company and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 1211. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness of the Company shall be
entitled by virtue of this Article or otherwise.
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SECTION 1212. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S
RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness of the
Company which may at any time be held by it, to the same extent as any other
holder of Senior Indebtedness of the Company, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1213. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that Section 1212 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1214. DEFEASANCE OF THIS ARTICLE TWELVE.
The subordination of the Securities provided by this Article Twelve is
expressly made subject to the provisions for Defeasance or Covenant Defeasance
in Article Fifteen and, anything herein to the contrary notwithstanding, upon
the effectiveness of any such Defeasance or Covenant Defeasance, the Securities
then outstanding shall thereupon cease to be subordinated pursuant to this
Article Twelve.
SECTION 1215. NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of (and premium,
if any) or interest on the Securities by reason of any provision of this Article
will not prevent the occurrence of an Event of Default.
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ARTICLE THIRTEEN
Subsidiary Guarantees
SECTION 1301. SUBSIDIARY GUARANTEES.
Each of the Subsidiary Guarantors hereby jointly and severally
unconditionally Guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, the due
and punctual payment of the principal of (and premium, if any) and interest on
such Security when and as the same shall become due and payable, whether at the
Stated Maturity, by acceleration, call for redemption, purchase or otherwise, in
accordance with the terms of such Security and of this Indenture. In case of
the failure of the Company punctually to make any such payment, each of the
Subsidiary Guarantors hereby jointly and severally agrees to cause such payment
to be made punctually when and as the same shall become due and payable, whether
at the Stated Maturity or by acceleration, call for redemption, purchase or
otherwise, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or this Indenture, the
absence of any action to enforce the same, any exchange, release or non-
perfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee of all or any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of Title 11 of the United States Code (the "Bankruptcy Code") of the application
of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a
security interest by the Company, as debtor-in-possession, under Section 364 of
the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy Code,
of all or any portion of the claims of the Trustee or any of the Holders for
payment of any of the Securities, any waiver or consent by the Holder of such
Security or by the Trustee with respect to any provisions thereof or of this
Indenture, the obtaining of any judgment against the Company or any action to
enforce the same, the existence of any claim, set-off or other rights which the
Subsidiary Guarantor may have at any time against the Company or any Holder of
the Securities, whether in connection herewith or any unrelated transaction, or
any other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Subsidiary Guarantors hereby
waives the benefits of
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diligence, presentment, demand for payment, any requirement that the Trustee or
any of the Holders protect, secure, perfect or insure any security interest in
or other Lien on any property subject thereto or exhaust any right or take any
action against the Company or any other Person or any collateral (including any
other Subsidiary Guarantor), 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 or notice with respect to such Security or the
Indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Subsidiary Guarantee will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and
in this Subsidiary Guarantee. Each of the Subsidiary Guarantors hereby agrees
that, in the event of a default in payment of principal (or premium, if any) or
interest on such Security, whether at their Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security, subject to the
terms and conditions set forth in this Indenture, directly against each of the
Subsidiary Guarantors to enforce this Subsidiary Guarantee without first
proceeding against the Company. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Securities, to collect
interest on the Securities, or to enforce or exercise any other right or remedy
with respect to the Securities, or the Trustee or the Holders are prevented from
taking any action to realize on any collateral, such Subsidiary Guarantor agrees
to pay to the Trustee for the account of the Holders, upon demand therefor, the
amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by the Trustee or any of the Holders.
The indebtedness evidenced by each Subsidiary Guarantee is, to the
extent provided in this Indenture, subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness of the Subsidiary
Guarantor, and the Subsidiary Guarantees are issued subject to the provisions of
this Indenture with respect thereto. Each Holder of such Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes.
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Each Subsidiary Guarantor shall be subrogated to all rights of the
Holders of the Securities upon which its Guarantee is endorsed against the
Company in respect of any amounts paid by such Subsidiary Guarantor on account
of such Security pursuant to the provisions of its Subsidiary Guarantee or this
Indenture; PROVIDED, HOWEVER, that no Subsidiary Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all
Securities issued hereunder shall have been paid in full.
The obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee shall be limited to an aggregate amount (which may be zero) equal to
the lesser of (i) the largest amount that would not render its obligations
hereunder or under Section 6 of the Credit Agreement subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions of
any applicable state law and (ii) the largest amount that would not cause the
obligations of such Subsidiary Guarantor under Section 6 of the Credit Agreement
to be reduced pursuant to subsection 6.08 thereof.
Each Subsidiary Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities,
is, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Securities, whether as a
"voidable preference," "fraudulent transfer," or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Securities shall,
to the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
Anything in this Indenture to the contrary notwithstanding, the
obligations of CasTech Aluminum Group Inc. and Barmet Aluminum Corporation under
Subsidiary Guarantees shall first become effective, and CasTech Aluminum Group
Inc. and Barmet Aluminum Corporation shall first become Subsidiary Guarantors,
upon the effectiveness of the merger of CALC Corporation into CasTech Aluminum
Group Inc. as contemplated by the Agreement and Plan of
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Merger dated as of August 19, 1996 between the Company, CALC Corporation and
CasTech Aluminum Group Inc.
SECTION 1302. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
The Subsidiary Guarantees to be endorsed on the Securities shall
include the terms of the Subsidiary Guarantee set forth in Section 1301 and any
other terms that may be set forth in the form established pursuant to Section
205. Each of the Subsidiary Guarantors hereby agrees to execute its Subsidiary
Guarantee, in a form established pursuant to Section 205, to be endorsed on each
Security authenticated and delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of each
respective Subsidiary Guarantor by any one of such Subsidiary Guarantor's
President, Vice Presidents or other person duly authorized by the Board of
Directors of such Subsidiary Guarantor, attested by its Secretary or Assistant
Secretary. The signature of any or all of these persons on the Subsidiary
Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile signature of
individuals who were at any time the proper officers of a Subsidiary Guarantor
shall bind such Subsidiary Guarantor, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Subsidiary Guarantee is endorsed or did
not hold such offices at the date of such Subsidiary Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
endorsed thereon on behalf of the Subsidiary Guarantors. Each of the Subsidiary
Guarantors hereby jointly and severally agrees that its Subsidiary Guarantee set
forth in Section 1301 shall remain in full force and effect notwithstanding any
failure to endorse a Subsidiary Guarantee on any Security.
SECTION 1303. ADDITIONAL SUBSIDIARY GUARANTORS.
The Company shall cause any Restricted Subsidiary (other than a
Securitization Subsidiary or an Immaterial Subsidiary (as long as such
Immaterial Subsidiary remains an Immaterial Subsidiary)) to become a Subsidiary
Guarantor with respect to the Securities by executing and delivering
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to the Trustee (a) a supplemental indenture, in form and substance satisfactory
to the Trustee, which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a Subsidiary Guarantor and
(b) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such Person and constitutes the legal,
valid, binding and enforceable obligation of such Person (subject to such
customary exceptions concerning creditors' rights and equitable principles as
may be acceptable to the Trustee in its discretion).
SECTION 1304. RELEASE OF SUBSIDIARY GUARANTORS.
(a) Upon any consolidation of a Subsidiary Guarantor with, or merger
of a Subsidiary Guarantor into, any other Person or any sale, conveyance,
transfer, lease or other disposition of all or substantially all its properties
and assets (as an entirety or substantially an entirety) to, any Person in
conformity with Section 801, the successor Person formed by such consolidation
or into which the Subsidiary Guarantor is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, such Subsidiary
Guarantor under this Indenture with the same effect as if such successor Person
had been named as the Subsidiary Guarantor herein, and thereafter, except in the
case of a lease, the predecessor Person shall cease to be a Subsidiary Guarantor
and shall be relieved of all obligations and covenants under this Indenture and
the Securities and Subsidiary Guarantees, all as provided in Section 802.
(b) Upon any sale, exchange or transfer (which sale, exchange or
transfer is not prohibited by this Indenture) to a Person other than the Company
or a Restricted Subsidiary of all of the Capital Stock owned by the Company or
any Subsidiary of the Company of a Subsidiary Guarantor to a Person other than
the Company or a Restricted Subsidiary of the Company, such Subsidiary Guarantor
shall cease to be a Subsidiary Guarantor and shall be relieved of all
obligations and covenants under this Indenture and the Securities and Subsidiary
Guarantees; PROVIDED that in connection with any such sale, exchange or transfer
to an Affiliate of the Company, the Company shall have first obtained a
favorable written opinion from a nationally recognized investment banking firm
as to the fairness from a financial point of view of such transaction to such
Subsidiary Guarantor.
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(c) Upon the redesignation by the Company of a Subsidiary Guarantor
from Restricted Subsidiary to an Unrestricted Subsidiary in compliance with the
provisions of this Indenture, such Subsidiary shall cease to be a Subsidiary
Guarantor and shall be relieved of all obligations and covenants under this
Indenture and the Securities and Subsidiary Guarantees.
(d) Concurrently with the Defeasance of the Securities under Section
1502, the Subsidiary Guarantors shall cease to be Subsidiary Guarantors and
shall be relieved of all obligations and covenants under this Indenture and the
Securities and Subsidiary Guarantees.
SECTION 1305. RIGHTS OF CONTRIBUTION.
The Subsidiary Guarantors hereby agree, as between themselves, that if
any Subsidiary Guarantor shall become an Excess Funding Guarantor (as defined
below) by reason of the payment by such Subsidiary Guarantor of any of its
obligations under its Subsidiary Guarantee, each other Subsidiary Guarantor
shall, on demand of such Excess Funding Guarantor (but subject to the next
sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's Pro Rata Share (as defined below and determined, for this
purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such obligations. The payment obligation of a Subsidiary Guarantor to any
Excess Funding Guarantor under this Section 1305 shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all such obligations.
For purposes of this Section 1305, (i) "EXCESS FUNDING GUARANTOR"
shall mean, in respect of any obligations under its Subsidiary Guarantee, a
Subsidiary Guarantor that has paid an amount in excess of its Pro Rata Share of
such obligations, (ii) "EXCESS PAYMENT" shall mean, in respect of any such
obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro
Rata Share of such obligations and (iii) "PRO RATA SHARE" shall mean, for any
Subsidiary Guarantor, the ratio (expressed as a percentage) of (A) the amount by
which the aggregate present fair saleable value of all properties of such
Subsidiary Guarantor (excluding any shares of stock of any other Subsidiary
Guarantor) exceeds the amount of all the debts and liabilities of such
Subsidiary Guarantor (including
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contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of such Subsidiary Guarantor under this Indenture and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (B) the amount by which the aggregate fair saleable
value of all properties of all of the Subsidiary Guarantors exceeds the amount
of all the debts and liabilities (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of the Company and
the Subsidiary Guarantors under this Indenture) of all of the Subsidiary
Guarantors, determined (1) with respect to any Subsidiary Guarantor that is a
party hereto on the Issue Date, as of the Issue Date, and (2) with respect to
any other Subsidiary Guarantor, as of the date such Subsidiary Guarantor becomes
a Subsidiary Guarantor hereunder.
ARTICLE FOURTEEN
Subordination of Subsidiary Guarantees
SECTION 1401. SUBSIDIARY GUARANTEES SUBORDINATE TO SENIOR INDEBTEDNESS OF
SUBSIDIARY GUARANTORS.
Each Subsidiary Guarantor covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article (subject to the
provisions of Article Four and Article Fifteen), the payment of the principal of
(and premium, if any) and interest on the Subsidiary Guarantee of each
Subsidiary Guarantor in respect of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness of such Subsidiary Guarantor.
SECTION 1402. PAYMENT OVER OF PROCEEDS UPON
DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to a Subsidiary Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of a Subsidiary Guarantor, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other
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marshalling of assets and liabilities of a Subsidiary Guarantor, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Subsidiary Guarantor Proceeding") the holders of
Senior Indebtedness of such Subsidiary Guarantor shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness of such Subsidiary Guarantor, or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness of such Subsidiary Guarantor, before the
Holders of the Securities are entitled to receive any payment or distribution of
any kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of such Subsidiary Guarantor subordinated to
payment on account of the Subsidiary Guarantee), on account of the Subsidiary
Guarantee of such Subsidiary Guarantor (all such payments and distributions
herein referred to, individually and collectively, as a "Subsidiary Guarantor
Payment"), and to that end the holders of Senior Indebtedness of such Subsidiary
Guarantor shall be entitled to receive, for application to the payment thereof,
any Subsidiary Guarantor Payment which may be payable or deliverable in respect
of such Subsidiary Guarantee in any such Subsidiary Guarantor Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Subsidiary Guarantor Payment before all Senior Indebtedness of such Subsidiary
Guarantor is paid in full or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness of such Subsidiary Guarantor, and if such fact shall, at or prior
to the time of such Subsidiary Guarantor Payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
Subsidiary Guarantor Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of such Subsidiary
Guarantor for application to the payment of all Senior Indebtedness of such
Subsidiary Guarantor remaining unpaid, to the extent necessary to pay all Senior
Indebtedness of such Subsidiary Guarantor in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness
of such Subsidiary Guarantor.
The consolidation of a Subsidiary Guarantor with, or the merger of a
Subsidiary Guarantor with or into,
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another Person or the liquidation or dissolution of a Subsidiary Guarantor
following the conveyance or transfer of all or substantially all of its
properties and assets to another Person upon the terms and conditions set forth
in Article Eight shall not be deemed a Subsidiary Guarantor Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which such Subsidiary Guarantor is merged or the Person which acquires by
conveyance or transfer such properties and assets, as the case may be, shall, as
a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
SECTION 1403. NO PAYMENT WHEN SENIOR INDEBTEDNESS OF A SUBSIDIARY GUARANTOR IN
DEFAULT.
In the event that any Subsidiary Guarantor Senior Payment Default (as
defined below) with respect to a Subsidiary Guarantor shall have occurred and be
continuing, then no Subsidiary Guarantor Payment by such Subsidiary Guarantor
shall be made unless and until (i) such Subsidiary Guarantor Senior Payment
Default shall have been cured or waived or shall have ceased to exist or all
amounts then due and payable in respect of Senior Indebtedness of such
Subsidiary Guarantor shall have been paid in full, or (ii) provision shall have
been made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness of such Subsidiary Guarantor
or (iii) the Company and the Trustee have received written notice approving such
Subsidiary Guarantor Payment from the holders or a Representative of the holders
of the Designated Senior Indebtedness or Senior Indebtedness with respect to
which the Senior Payment Default has occurred and is continuing. "Subsidiary
Guarantor Senior Payment Default" means any default in the payment of Designated
Senior Indebtedness of such Subsidiary Guarantor or Senior Indebtedness of such
Subsidiary Guarantor with an aggregate principal amount in excess of $5.0
million then outstanding when due, whether at the Stated Maturity of any such
payment or by declaration of acceleration, call for redemption or otherwise.
In the event that any Subsidiary Guarantor Senior Nonmonetary Default
(as defined below) with respect to a Subsidiary Guarantor shall have occurred
and be continuing, then, upon the receipt by the Trustee (with a copy to such
Subsidiary Guarantor) of a Blockage Notice of such Subsidiary Guarantor Senior
Nonmonetary Default from a holder or Representative of holders of the Designated
Senior Indebtedness, no Subsidiary Guarantor Payment by such Subsidiary
Guarantor shall be made during the period (the
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"Subsidiary Guarantee Payment Blockage Period") commencing on the date of such
receipt of such Blockage Notice and ending on the earlier of (i) the date on
which such Designated Senior Indebtedness to which such default relates shall
have been discharged or such default shall have been cured or waived or shall
have ceased to exist, (ii) the 179th day after the date of such receipt of such
Blockage Notice, or (iii) the date on which such Subsidiary Guarantee Payment
Blockage Period shall have been terminated by written notice to such Subsidiary
Guarantor and the Trustee from the Person or Persons who gave such Blockage
Notice. No more than one Subsidiary Guarantee Payment Blockage Period may be
commenced with respect to a Subsidiary Guarantee during any consecutive 360-day
period and there shall be a period of at least 181 consecutive days in each 360-
day period when no Subsidiary Guarantee Payment Blockage Period with respect to
such Subsidiary Guarantor is in effect. For all purposes of this paragraph, no
Subsidiary Guarantor Senior Nonmonetary Default that existed or was continuing
on the date of commencement of any Subsidiary Guarantee Payment Blockage Period
shall be, or be made, the basis for the commencement of a subsequent Subsidiary
Guarantee Payment Blockage Period by holders or a Representative of holders of
Designated Senior Indebtedness of the Subsidiary Guarantor unless such
Subsidiary Guarantor Senior Nonmonetary Default shall have been cured or waived
for a period of not less than 90 consecutive days. "Subsidiary Guarantor Senior
Nonmonetary Default" means the occurrence or existence and continuance of any
event of default under the terms of any instrument pursuant to which any
Designated Senior Indebtedness of such Subsidiary Guarantor is outstanding,
permitting holders or a Representative of holders of Designated Senior
Indebtedness of such Subsidiary Guarantor to declare such Designated Senior
Indebtedness of such Subsidiary Guarantor due and payable prior to the date on
which it would otherwise become due and payable, other than a Subsidiary
Guarantor Senior Payment Default.
In the event that, notwithstanding the foregoing, a Subsidiary
Guarantor shall make any Subsidiary Guarantor Payment to the Trustee or any of
the Holders, or the Trustee or any of the Holders shall receive any Subsidiary
Guarantor Payment, prohibited by the foregoing provisions of this Section such
Subsidiary Guarantor Payment shall be held in trust for the benefit of the
holders of Senior Indebtedness of the Subsidiary Guarantor and paid over and
delivered forthwith to the holders or Representatives of holders of Senior
Indebtedness as their interest may appear for application to payment of Senior
Indebtedness.
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The provisions of this Section shall not apply to any Subsidiary
Guarantor Payment with respect to which Section 1402 would be applicable.
SECTION 1404. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Subsidiary Guarantees shall prevent at any time except during the
pendency of any Subsidiary Guarantor Proceeding referred to in Section 1402 or
under the conditions described in Section 1403, (a) any Subsidiary Guarantor
from making Subsidiary Guarantor Payments or (b) the application by the Trustee
of any money deposited with it hereunder to Subsidiary Guarantor Payments or the
retention of such Subsidiary Guarantor Payments by the Holders.
SECTION 1405. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS OF A SUBSIDIARY GUARANTOR.
Upon the payment in full of all amounts due or to become due on or in
respect of Senior Indebtedness of a Subsidiary Guarantor, or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness of a Subsidiary Guarantor, the Holders of
the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness of the Subsidiary
Guarantor pursuant to the provisions of this Article (equally and ratably with
the holders of all indebtedness of the Subsidiary Guarantor which by its express
terms is subordinated to indebtedness of the Subsidiary Guarantor to
substantially the same extent as the Securities are subordinated and is entitled
to like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness of a Subsidiary Guarantor to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness of such
Subsidiary Guarantor until the principal of (and premium, if any) and interest
on the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of such
Subsidiary Guarantor of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness of such Subsidiary Guarantor by Holders of
the Securities or the Trustee, shall, as among the Subsidiary
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Guarantors, their creditors other than holders of Senior Indebtedness of the
Subsidiary Guarantors and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness of such Subsidiary Guarantor.
SECTION 1406. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
(a) The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Indebtedness of each Subsidiary Guarantor on the other
hand. Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Subsidiary
Guarantors, their creditors other than holders of Senior Indebtedness of the
Subsidiary Guarantors and the Holders of the Securities, the obligation of each
Subsidiary Guarantor, which is absolute and unconditional, to pay to the Holders
of the Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against any Subsidiary Guarantor
of the Holders of the Securities and creditors of such Subsidiary Guarantor
other than the holders of Senior Indebtedness of such Subsidiary Guarantor; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness of a Subsidiary Guarantor to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
(b) Without limiting the generality of the foregoing, nothing
contained in this Article will restrict the right of the Trustee or the Holders
to take any action to declare the Securities to be due and payable prior to
their Stated Maturity pursuant to Section 502 of this Indenture or to pursue any
rights or remedies hereunder.
SECTION 1407. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
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SECTION 1408. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness of
any Subsidiary Guarantor to enforce subordination as herein provided shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of such Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by such Subsidiary Guarantor
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of any Subsidiary Guarantor may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities to
the holders of Senior Indebtedness of such Subsidiary Guarantor, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness of such
Subsidiary Guarantor, or otherwise amend or supplement in any manner Senior
Indebtedness of such Subsidiary Guarantor or any instrument evidencing the same
or any agreement under which Senior Indebtedness of such Subsidiary Guarantor is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness of such Subsidiary
Guarantor; (iii) release any Person liable in any manner for the collection of
Senior Indebtedness of such Subsidiary Guarantor; and (iv) exercise or refrain
from exercising any rights against such Subsidiary Guarantor and any other
Person.
SECTION 1409. NOTICE TO TRUSTEE.
Each Subsidiary Guarantor shall give prompt written notice to the
Trustee of any fact known to such Subsidiary Guarantor which would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from a Subsidiary Guarantor or a holder of Senior
Indebtedness of a
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Subsidiary Guarantor or from any trustee therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER, that if the Trustee shall not have received the notice provided for in
this Section at or prior to 5:00 p.m. (Chicago time) the Business Day prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it after 5:00 p.m. (Chicago time) on the Business Day prior to
such date; PROVIDED that nothing herein shall in any way limit the obligation of
the Holders to pay over and deliver any Subsidiary Guarantor Payment in the
circumstances specified in Sections 1402 and 1403.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of a Subsidiary
Guarantor (or a trustee therefor) to establish that such notice has been given
by a holder or a Representative of holders of Senior Indebtedness of such
Subsidiary Guarantor. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness of a Subsidiary Guarantor to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness of such Subsidiary Guarantor held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 1410. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Subsidiary
Guarantors referred to in this Article, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent
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<PAGE>
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness of a Subsidiary Guarantor
and other indebtedness of such Subsidiary Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 1411. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS OF THE SUBSIDIARY GUARANTORS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of any Subsidiary Guarantor and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to any Subsidiary Guarantor or to any
other Person cash, property or securities to which any holders of Senior
Indebtedness of such Subsidiary Guarantor shall be entitled by virtue of this
Article or otherwise.
SECTION 1412. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS OF THE SUBSIDIARY GUARANTORS;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness of any
Subsidiary Guarantor which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness of such Subsidiary Guarantor, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1413. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such
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<PAGE>
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; PROVIDED, HOWEVER, that Section 1412 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1414. DEFEASANCE OF THIS ARTICLE FOURTEEN.
The subordination of the Subsidiary Guarantees provided by this
Article Fourteen is expressly made subject to the provisions for Defeasance or
Covenant Defeasance in Article Fifteen and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such Defeasance or Covenant
Defeasance, the Subsidiary Guarantees then outstanding shall thereupon cease to
be subordinated pursuant to this Article Fourteen.
SECTION 1415. NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of (and premium,
if any) or interest on the Securities by reason of any provision of this Article
will not prevent the occurrence of an Event of Default.
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
SECTION 1501. COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have Section 1502
or Section 1503 applied to any Securities upon compliance with the conditions
set forth below in this Article. Any such election shall be evidenced by a Board
Resolution.
SECTION 1502. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1501
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities, and the
provisions of Article Twelve and Article Fourteen shall cease to be effective,
on and after the date the conditions
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<PAGE>
set forth in Section 1504 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that (i) the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), and (ii) the Subsidiary Guarantors shall each be released from their
Subsidiary Guarantees, except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1504 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Fifteen. Subject to compliance with this
Article Fifteen, the Company may exercise its option under this Section 1502
notwithstanding the prior exercise of its option under Section 1503.
SECTION 1503. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1501
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1006 through 1016, inclusive, and clause (3) of
Section 801), (ii) the occurrence of any event specified in Sections 501(3)
(with respect to Sections 1006 through 1016, inclusive, and clause (3) of
Section 801) and 501(4) and 501(5) shall be deemed not to be or result in an
Event of Default and (iii) the provisions of Article Twelve and Article Fourteen
shall cease to be effective on and after the date the conditions set forth in
Section 1504 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section, clause or Article, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section,
clause or Article or by reason of any reference in any such Section, clause or
Article to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
-145-
<PAGE>
SECTION 1504. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the application of either
Section 1502 or Section 1503 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements of Section 609 who shall agree to comply with the provisions
of this Article Fifteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the payment of principal and interest in respect thereof in
accordance with their terms will provide money in an amount, or (C) a
combination thereof, sufficient to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
the principal of (and premium, if any) and each instalment of interest on
the Securities on the Stated Maturity of such principal or installment of
interest in accordance with the terms of this Indenture and such
Securities.
(2) In the case of an election under Section 1502 the Company shall
have delivered to the Trustee either (i) an Opinion of Counsel to the
effect that Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of the Company's exercise of its election
under this Section 1504 and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been
the case if such deposit, Defeasance and discharge had not occurred, which
Opinion of Counsel must be based upon (and accompanied by a copy of) a
ruling of the Internal Revenue Service to the same effect unless there has
been a change in applicable Federal income tax law after the date of this
Indenture such that a ruling is no longer required or (ii) a ruling
directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel.
(3) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and Covenant Defeasance and will be
subject to Federal
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<PAGE>
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit and Covenant Defeasance had not
occurred.
(4) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the creation of the defeasance trust does not
violate the Investment Company Act and after the passage of 123 days
following the deposit, the trust fund will not be subject to the effect of
Section 547 of the United States Bankruptcy Code or Section 15 of the New
York Debtor and Creditor Law.
(5) Immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or during the period ending on the 123rd day
after the date of such deposit, and such deposit shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which the Company is
bound (it being understood that this condition shall not be deemed
satisfied until after such 123rd day).
SECTION 1505. DEPOSITED MONEYS AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST;
MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1506, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1504 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law. Money so held in trust shall not be
subject to the provisions of Article Twelve and Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant
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<PAGE>
to Section 1504 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 Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1504 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance.
SECTION 1506. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 1502 or 1503, as the case may
be, by reason of any legal proceeding or by reason of any order or judgment of
any court of governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 1502 or 1503, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 1502 or 1503, as the case may be;
PROVIDED that, if the Company has made any payment of principal of (and premium,
if any) or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
---------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
COMMONWEALTH ALUMINUM CORPORATION
By
---------------------------
Attest:
- --------------------------
COMMONWEALTH ALUMINUM LEWISPORT,
INC.
By
---------------------------
Attest:
- -------------------------
COMMONWEALTH ALUMINUM SALES
CORPORATION
By
---------------------------
Attest:
- -------------------------
CALC CORPORATION
By
---------------------------
Attest:
- -------------------------
-149-
<PAGE>
CASTECH ALUMINUM GROUP INC.
By
---------------------------
Attest:
- -------------------------
BARMET ALUMINUM CORPORATION
By
---------------------------
Attest:
- -------------------------
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By
---------------------------
Attest:
- -------------------------
-150-
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came Mark V.
Kaminski, to me known, who, being by me duly sworn, did depose and say that he
is President of Commonwealth Aluminum Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came Mark V.
Kaminski, to me known, who, being by me duly sworn, did depose and say that he
is President of Commonwealth Aluminum Lewisport, Inc., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------
-151-
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came Mark V.
Kaminski, to me known, who, being by me duly sworn, did depose and say that he
is President of Commonwealth Aluminum Sales Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came Mark V.
Kaminski, to me known, who, being by me duly sworn, did depose and say that he
is President of CALC Corporation, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
---------------------------
-152-
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came Terry
D. Smith, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of CasTech Aluminum Group Inc., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came Terry D.
Smith, to me known, who, being by me duly sworn, did depose and say that he is a
Vice President of Barmet Aluminum Corporation, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------
-153-
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 20th day of September, 1996, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________________________________________ of
Harris Trust and Savings Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
---------------------------
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<PAGE>
EXHIBIT A
FORM OF CERTIFICATE
[ , ]
Harris Trust and Savings Bank
[address]
Attention: Indenture Trust Division
Re: Commonwealth Aluminum Corporation
(the "Company") 10 3/4% Senior Subordinated
Notes due 2006 (the "Securities")
--------------------------------------------
Dear Sirs:
This letter relates to U.S. $[____________] principal amount of
Securities represented by a Security (the "Legended Security") which bears a
legend outlining restrictions upon transfer of such Legended Security. Pursuant
to Section 202 of the Indenture dated as of September 20, 1996 (the "Indenture")
relating to the Securities, we hereby certify that we are (or we will hold such
securities on behalf of) a person outside the United States to whom the
Securities could be transferred in accordance with Rule 904 of Regulation S
promulgated under the U.S. Securities Act of 1933. Accordingly, you are hereby
requested to exchange the legended certificate for an unlegended certificate
representing an identical principal amount of Securities, all in the manner
provided for in the Indenture.
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 adminis-trative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
----------------------
Authorized Signature
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
[____________, ____]
Harris Trust and Savings Bank
[address]
Attention: Indenture Trust Division
Re: Commonwealth Aluminum Corporation (the
"Company") 10 3/4% Senior Subordinated Notes
due 2006 (the "Securities")
---------------------------------------------
Dear Sirs:
In connection with our proposed purchase of $[___________] aggregate
principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture dated
as of September 20, 1996 (the "Indenture"), relating to the Securities, and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933 (the "Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold 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 sell any Securities, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein), (C) to
an institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this
letter, (D) outside the United States in accordance with Rule 904 of Regulation
S under the Securities Act, (E) pursuant to the exemption from registration
provided by Rule 144A under the Securities Act, or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any of the Securities from us a notice
<PAGE>
advising such purchaser that resales of the Securities are restricted as stated
herein.
3. We understand that, on any proposed resale of any Securities, 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 sale complies with the foregoing restrictions. We
further understand that the Securities 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) of Regulation D 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 Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Securities 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 adminis-trative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------
Authorized Signature
-B2-
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
[_________, ____]
Harris Trust and Savings Bank
[address]
Attention: Indenture Trust Division
Re: Commonwealth Aluminum Corporation (the
"Company") 10 3/4% Senior Subordinated Notes
due 2006 (the "Securities")
--------------------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$[___________] aggregate
principal amount of the Securities, we confirm that such sale has been effected,
pursuant to and in accordance with Regulation S under the Securities Act of 1933
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 adminis-trative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------
Authorized Signature
<PAGE>
Exhibit 5
[LETTERHEAD OF SULLIVAN & CROMWELL]
October 7, 1996
Commonwealth Aluminum Corporation,
1200 Meidinger Tower,
462 S. 4th Avenue,
Louisville, Kentucky 40202.
Dear Sirs:
In connection with the registration under the Securities Act of 1933
(the "Act") of $125,000,000 principal amount of 10 3/4% Senior Subordinated
Notes Due 2006 (the "Securities") of Commonwealth Aluminum Corporation, a
Delaware corporation (the "Company"), we, as your counsel, have examined such
corporate records, certificates and other documents, and such questions of law,
as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion, when the Registration Statement has become effective under the Act and
the Securities have been duly executed and authenticated in accordance with the
Indenture relating to the Securities and issued and delivered as contemplated in
the Registration Statement, the Securities will constitute valid and legally
binding obligations of the Company, subject to bankruptcy,
<PAGE>
Commonwealth Aluminum Corporation -2-
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law of the
State of Delaware, and we are expressing no opinion as to the effect of the laws
of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible, and we have assumed that the Indenture has been duly authorized,
executed and delivered by the Trustee thereunder, an assumption which we have
not independently verified.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
New Notes" in
<PAGE>
Commonwealth Aluminum Corporation -3-
the Prospectus. In giving such consent, we do not thereby admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
<PAGE>
[EXECUTION COUNTERPART]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COMMONWEALTH ALUMINUM CORPORATION,
COMMONWEALTH ALUMINUM LEWISPORT, INC.,
CASTECH ALUMINUM GROUP INC.
and
BARMET ALUMINUM CORPORATION
-----------------------------
$425,000,000
-----------------------------
CREDIT AGREEMENT
Dated as of September 20, 1996
-----------------------------
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
----
Section 1. Definitions and Accounting Matters. . . . . . . . . . . . . . . . 2
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . 50
1.03 Types of Loans. . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 2. Commitments, Loans, Notes and Prepayments . . . . . . . . . . . . 51
2.01 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
2.02 Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2.03 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 56
2.04 Changes of Commitments. . . . . . . . . . . . . . . . . . . . . . 62
2.05 Certain Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
2.06 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . 64
2.07 Several Obligations; Remedies Independent . . . . . . . . . . . . 64
2.08 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
2.09 Optional Prepayments and Conversions or
Continuations of Loans. . . . . . . . . . . . . . . . . . . . . . 66
2.10 Mandatory Prepayments and Reductions of
Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2.11 Reserved Commitments, Etc.. . . . . . . . . . . . . . . . . . . . 73
Section 3. Payments of Principal and Interest. . . . . . . . . . . . . . . . 74
3.01 Repayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . 74
3.02 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 4. Payments; Pro Rata Treatment; Computations; Etc.. . . . . . . . . 78
4.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
4.02 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . 79
4.03 Computations. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.06 Non-Receipt of Funds by the Administrative Agent. . . . . . . . . 81
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . 83
Section 5. Yield Protection, Etc.. . . . . . . . . . . . . . . . . . . . . . 84
5.01 Additional Costs. . . . . . . . . . . . . . . . . . . . . . . . . 84
5.02 Limitation on Types of Loans. . . . . . . . . . . . . . . . . . . 86
5.03 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
5.04 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . 87
5.05 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . 88
5.06 Additional Costs in Respect of Letters of Credit. . . . . . . . . 89
5.07 U.S. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
5.08 Replacement of Lenders. . . . . . . . . . . . . . . . . . . . . . 91
(i)
<PAGE>
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----
Section 6. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
6.01 The Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . 92
6.02 Obligations Unconditional.. . . . . . . . . . . . . . . . . . . . 94
6.03 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . 96
6.04 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
6.05 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
6.06 Continuing Guarantee. . . . . . . . . . . . . . . . . . . . . . . 97
6.07 Rights of Contribution. . . . . . . . . . . . . . . . . . . . . . 97
6.08 Limitation on Guarantee Obligations.. . . . . . . . . . . . . . . 98
Section 7. Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . 98
7.01 Initial Tender Offer Term Loan. . . . . . . . . . . . . . . . . . 98
7.02 Initial Revolving Credit Loans. . . . . . . . . . . . . . . . . . 106
7.03 Initial Post-Merger Term Loans. . . . . . . . . . . . . . . . . . 106
7.04 Initial Post-Merger Revolving Credit Loans. . . . . . . . . . . . 110
7.05 Initial and Subsequent Extensions of Credit . . . . . . . . . . . 111
7.06 Certain Determinations. . . . . . . . . . . . . . . . . . . . . . 111
Section 8. Representations and Warranties. . . . . . . . . . . . . . . . . . 112
8.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 112
8.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . 112
8.03 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
8.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
8.05 Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
8.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
8.07 Use of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 115
8.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
8.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
8.10 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . 116
8.11 Public Utility Holding Company Act. . . . . . . . . . . . . . . . 116
8.12 Material Agreements and Liens . . . . . . . . . . . . . . . . . . 116
8.13 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . 117
8.14 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.15 Subsidiaries, Etc.. . . . . . . . . . . . . . . . . . . . . . . . 122
8.16 Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . 123
8.17 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . 123
8.18 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . 124
8.19 Security Documents. . . . . . . . . . . . . . . . . . . . . . . . 124
Section 9. Covenants of the Obligors . . . . . . . . . . . . . . . . . . . . 124
9.01 Financial Statements, Etc.. . . . . . . . . . . . . . . . . . . . 124
9.02 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
9.03 Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 129
9.04 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
9.05 Prohibition of Fundamental Changes. . . . . . . . . . . . . . . . 133
9.06 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . 135
9.07 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . 137
9.08 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
9.09 Dividend Payments . . . . . . . . . . . . . . . . . . . . . . . . 139
9.10 Certain Financial Covenants . . . . . . . . . . . . . . . . . . . 140
9.11 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . . 147
(ii)
<PAGE>
Page
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9.12 Interest Rate Protection Agreements . . . . . . . . . . . . . . . 147
9.13 Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . 147
9.14 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . 148
9.15 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . 148
9.16 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 148
9.17 Certain Obligations Respecting Subsidiaries . . . . . . . . . . . 149
9.18 Certain Post-Closing Real Estate Matters. . . . . . . . . . . . . 150
9.19 Modifications of Certain Documents. . . . . . . . . . . . . . . . 151
9.20 Consummation of the Merger. . . . . . . . . . . . . . . . . . . . 151
9.21 Commodity Hedging Activities. . . . . . . . . . . . . . . . . . . 151
9.22 After-Acquired Real Estate. . . . . . . . . . . . . . . . . . . . 152
9.23 Activities of the Parent and New CALC.. . . . . . . . . . . . . . 152
Section 10. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 153
Section 11. The Administrative Agent . . . . . . . . . . . . . . . . . . . . 157
11.01 Appointment, Powers and Immunities . . . . . . . . . . . . . . . 157
11.02 Reliance by Administrative Agent . . . . . . . . . . . . . . . . 158
11.03 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
11.04 Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . 159
11.05 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . 159
11.06 Non-Reliance on Administrative Agent and Other
Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
11.07 Failure to Act . . . . . . . . . . . . . . . . . . . . . . . . . 161
11.08 Resignation or Removal of Administrative Agent . . . . . . . . . 161
11.09 Consents under Other Credit Documents. . . . . . . . . . . . . . 161
11.10 Collateral Sub-Agents. . . . . . . . . . . . . . . . . . . . . . 162
Section 12. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . 162
12.01 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
12.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
12.03 Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 163
12.04 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 165
12.05 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 166
12.06 Assignments and Participations . . . . . . . . . . . . . . . . . 166
12.07 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
12.08 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
12.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 169
12.10 Governing Law; Submission to Jurisdiction. . . . . . . . . . . . 169
12.11 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . 170
12.12 Treatment of Certain Information;
Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . 170
(iii)
<PAGE>
SCHEDULES
SCHEDULE I - Lenders and Commitments
SCHEDULE II - Litigation
SCHEDULE III - Conflicts
SCHEDULE IV - Governmental Approvals, Etc.
SCHEDULE V - Material Agreement and Liens (Parent)
SCHEDULE VI - Material Agreement and Liens (CasTech)
SCHEDULE VII - Certain Environmental Matters
SCHEDULE VIII - Capitalization and Equity Rights relating to the
Parent
SCHEDULE IX - Capitalization and Equity Rights relating to CALI
SCHEDULE X - Capitalization and Equity Rights relating to
New CALC
SCHEDULE XI - Capitalization and Equity Rights relating to
CasTech
SCHEDULE XII - Capitalization and Equity Rights relating to
Barmet
SCHEDULE XIII - Subsidiaries and Investments
SCHEDULE XIV - Title to Properties
SCHEDULE XV - Real Estate (Parent and Subsidiaries)
SCHEDULE XVI - Real Estate (CasTech and Subsidiaries)
EXHIBITS
EXHIBIT A-1 - Form of Tender Offer Tranche A Term Loan Note
EXHIBIT A-2 - Form of Tender Offer Tranche B Term Loan Note
EXHIBIT A-3 - Form of Tender Offer CALI Revolving Credit Note
EXHIBIT A-4 - Form of Tender Offer CasTech Revolving Credit Note
EXHIBIT A-5 - Form of Post-Merger Tranche A Term Loan Note
EXHIBIT A-6 - Form of Post-Merger Tranche B Term Loan Note
EXHIBIT A-7 - Form of Post-Merger Revolving Credit Note
EXHIBIT A-8 - Form of Swingline Note (Tender Offer)
EXHIBIT A-9 - Form of Swingline Note (Post-Merger)
EXHIBIT B - Form of Borrowing Base Certificate
EXHIBIT C - Form of Commonwealth Pledge and Security Agreement
EXHIBIT D - Form of CasTech Pledge and Security Agreement
EXHIBIT E - Form of New CALC Note
EXHIBIT F-1 - Form of Mortgage
EXHIBIT F-2 - Form of Deed of Trust
EXHIBIT G - Form of Opinion of Counsel to the Obligors
EXHIBIT H - Form of Opinion of Local Counsel
EXHIBIT I - Form of Opinion of Special New York Counsel to
NatWest
EXHIBIT J - Form of Assumption and Confirmation Agreement
EXHIBIT K - Form of Confidentiality Agreement
(iv)
<PAGE>
CREDIT AGREEMENT (this "AGREEMENT") dated as of September 20, 1996,
between:
(1) COMMONWEALTH ALUMINUM CORPORATION, a corporation duly organized
and validly existing under the laws of the State of Delaware (the
"PARENT");
(2) COMMONWEALTH ALUMINUM LEWISPORT, INC., a corporation duly
organized and validly existing under the laws of the State of Delaware
("CALI");
(3) CASTECH ALUMINUM GROUP INC., a corporation duly organized and
validly existing under the laws of the State of Delaware ("CASTECH");
(4) BARMET ALUMINUM CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Ohio ("BARMET");
(5) each of the Subsidiaries of the Parent identified under the
caption "SUBSIDIARY GUARANTORS" on the signature pages hereto and each
Subsidiary of the Parent that becomes a "Subsidiary Guarantor" after the
date hereof pursuant to Section 9.17(a) hereof (each, a "SUBSIDIARY
GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS");
(6) each of the lenders that is a signatory hereto identified under
the caption "LENDERS" on the signature pages hereto and each lender that
becomes a "Lender" after the date hereof pursuant to Section 12.06(b)
hereof (individually, a "LENDER" and, collectively, the "LENDERS"); and
(7) NATIONAL WESTMINSTER BANK PLC, as administrative agent for the
Lenders (in such capacity, together with its successors in such capacity,
the "ADMINISTRATIVE AGENT").
PRELIMINARY STATEMENTS:
Terms used in these Preliminary Statements and not otherwise defined
shall have the meanings assigned to such terms in Section 1.01 of this
Agreement.
(A) Each of the Obligors has requested the Lenders to make loans to
the Borrowers in an aggregate principal amount not exceeding $425,000,000 at any
one time outstanding:
(1) to provide financing for the acquisition by the Parent (either
directly or through New CALC) of all of the CasTech Shares and for certain
related purposes;
CREDIT AGREEMENT
<PAGE>
-2-
(2) to refinance certain Indebtedness of CALI, CasTech and their
respective Subsidiaries outstanding on the Initial Borrowing Date; and
(3) to provide working capital requirements and for other general
corporate purposes of CALI, CasTech and their respective Subsidiaries.
(B) Following the purchase of CasTech Shares pursuant to the Tender
Offer, it is contemplated that New CALC will merge with and into CasTech with
the result that CasTech will be the surviving corporation (the "MERGER"), such
merger to be in accordance with the terms of the Merger Agreement. From and
after the Merger, all references herein to New CALC shall be deemed to be
references to such surviving corporation.
(C) In order to refinance the loans described in Preliminary
Statement (A), to finance the payment of certain amounts owing in connection
with the Merger and to provide working capital requirements and for other
general corporate purposes of CALI, CasTech and their respective Subsidiaries,
the Lenders are prepared to make available the credit facilities provided for
herein.
(D) Each of the Obligors expects to derive benefit, directly or
indirectly, from the credit so extended, both in its separate capacity and as a
member of the Commonwealth Group, since the successful operation of each of such
Obligors will be dependent on the continued successful performance of the
functions of such Commonwealth Group as a whole.
Accordingly, the parties hereto agree as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the correlative
meanings when used in the plural and VICE VERSA):
"ACQUISITION" shall mean (a) the purchase by the Parent (either
directly or indirectly) of more than 50% of the CasTech Shares (at a price per
share not to exceed $20.50) for cash pursuant to the Tender Offer Documents,
(b) the Merger and (c) the purchase of options in respect of the CasTech Shares
as contemplated by the Merger Agreement.
CREDIT AGREEMENT
<PAGE>
-3-
"ACQUISITION COSTS" shall mean all fees and expenses incurred by the
Obligors in connection with the Acquisition and related transactions.
"ACQUISITION DOCUMENTS" shall mean the Tender Offer Documents, the
Additional Tender Offer Documents, the Merger Agreement, the certificate of
merger with respect to the Merger, any Information Statement and any other
document or information sent by the Parent or CasTech to the stockholders of
CasTech or filed with the Commission in connection with the Acquisition.
"ADDITIONAL TENDER OFFER DOCUMENTS" shall mean all amendments and
exhibits to, and documents related to, the Tender Offer Documents filed with the
Commission, or distributed to the stockholders of CasTech, in each case
delivered to the Administrative Agent and Lenders on or after the date of this
Agreement.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the recital of parties to this Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an administrative
questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" shall mean any Person directly or indirectly controlling,
directly or indirectly controlled by or under direct or indirect common control
with the Parent. As used in this definition, "CONTROL" (including, with its
correlative meanings, "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), PROVIDED that, in any event, any Person that owns directly or
indirectly securities having 10% or more of the voting power for the election of
directors or other governing body of a corporation or 10% or more of the
partnership or other ownership interests of any other Person (other than as a
limited partner of such other Person) will be deemed to control such corporation
or other Person. Notwithstanding the foregoing, (a) no individual shall be an
Affiliate solely by reason of his or her being a director, officer or employee
of the Parent or any of its Subsidiaries and (b) none of the Wholly Owned
Subsidiaries of the Parent shall be Affiliates.
"ALUMINUM BUSINESS" shall mean the business of developing,
manufacturing, producing, marketing, transporting and
CREDIT AGREEMENT
<PAGE>
-4-
selling aluminum, aluminum products and electrical wiring products
(including, without limitation, flexible conduit and pre-wired armored cable)
and any other business incidental thereto.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the lending office of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire of
such Lender or such other lending office of such Lender (or of an affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Parent as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE LETTER OF CREDIT PERCENTAGE" shall mean, at any time:
(a) on or prior to the Merger Date, (i) for any day during which any
Tender Offer Tranche B Term Loans are outstanding, 2.50% and (ii) for any
other day, 2.25%; and
(b) thereafter, the Applicable Margin in effect at such time with
respect to Tranche A Term Loans that are Eurodollar Loans.
"APPLICABLE MARGIN" shall mean, at any time:
(a) with respect to the Tender Offer Facilities:
(i) for Tender Offer Tranche A Term Loans and Tender Offer Revolving
Credit Loans (x) for any day during which any Tender Offer Tranche B Term
Loans are outstanding, 1.25% and (y) for any other day, 1.00%; and
(ii) for Tender Offer Tranche B Term Loans, 1.75%; and
(b) with respect to the Post-Merger Facilities:
(i) for each Type of Post-Merger Tranche A Term Loans and Post-Merger
Revolving Credit Loans set forth below, the percentage set forth below such
Type (under Column A for any day during which any Post-Merger Tranche B
Term Loans are outstanding and under Column B for any other day) opposite
the Applicable Pricing Level in effect at such time:
CREDIT AGREEMENT
<PAGE>
-5-
Applicable BASE RATE LOANS EURODOLLAR LOANS
Pricing Level Column A Column B Column A Column B
- ------------- -------- -------- -------- --------
1 0.00% 0.00% 0.50% 0.50%
2 0.00% 0.00% 0.75% 0.75%
3 0.00% 0.00% 1.25% 1.00%
4 0.25% 0.00% 1.50% 1.25%
5 0.50% 0.25% 1.75% 1.50%
6 0.75% 0.50% 2.00% 1.75%
7 1.00% 0.75% 2.25% 2.00%
8 1.25% 1.00% 2.50% 2.25%
(ii) for Post-Merger Tranche B Term Loans that are Base Rate Loans,
1.75%, and for Post-Merger Tranche B Term Loans that are Eurodollar Loans,
3.00%.
The Applicable Margin for Swingline Loans at any time shall be the Applicable
Margin in effect for Revolving Credit Loans that are Base Rate Loans at such
time.
"APPLICABLE NON-UTILIZATION FEE PERCENTAGE" shall mean, at any time:
(a) with respect to the Tender Offer Facilities, 0.50%; and
(b) with respect to the Post-Merger Facilities, the percentage set
forth in the schedule below opposite the Applicable Pricing Level in effect
at such time:
Applicable Applicable Non-Utilization
Pricing Level Fee Percentage
- ------------- --------------------------
1 0.175%
2 0.200%
3 0.250%
4 0.250%
5 0.375%
CREDIT AGREEMENT
<PAGE>
-6-
Applicable Applicable Non-Utilization
Pricing Level Fee Percentage
- ------------- --------------------------
6 0.375%
7 0.375%
8 0.500%
The "APPLICABLE PRICING LEVEL" in effect at any time shall be deemed
to be the level specified in the schedule below opposite the Senior Indebtedness
to EBITDA Ratio in effect as at the close of business on the Merger Date
(PROVIDED that if the Senior Indebtedness to EBITDA Ratio as at the last day of
any fiscal quarter of the Parent ending on or after September 30, 1996 shall
fall within any of the ranges set forth in the schedule below then, subject to
the delivery to the Administrative Agent of a certificate of a Responsible
Officer of the Parent demonstrating such fact prior to the end of the next
succeeding fiscal quarter, the Applicable Pricing Level shall be changed to the
Applicable Pricing Level set forth opposite such range in such schedule during
the period commencing on the Quarterly Date on or immediately following the date
of receipt of such certificate to but not including the next succeeding
Quarterly Date thereafter):
Applicable
Pricing Level Senior Indebtedness to EBITDA Ratio
- ------------- -----------------------------------
1 Less than 1.00 to 1.00
2 Greater than or equal to 1.00 to 1.00
and less than 2.00 to 1.00
3 Greater than or equal to 2.00 to 1.00
and less than 2.50 to 1.00
4 Greater than or equal to 2.50 to 1.00
and less than 3.00 to 1.00
CREDIT AGREEMENT
<PAGE>
-7-
Applicable
Pricing Level Senior Indebtedness to EBITDA Ratio
- ------------- -----------------------------------
5 Greater than or equal to 3.00 to 1.00
and less than 3.50 to 1.00
6 Greater than or equal to 3.50 to 1.00
and less than 4.00 to 1.00
7 Greater than or equal to 4.00 to 1.00
and less than 4.25 to 1.00
8 Greater than or equal to 4.25 to 1.00
"APPROVED ACCOUNT DEBTOR" shall mean each of Reynolds Aluminum
Corporation and Stolle Corporation (formerly known as Alcoa Building Products)
so long as the senior unsecured, non-credit enhanced debt securities of Reynolds
Aluminum Corporation or Stolle Corporation, as the case may be, are rated Baa3
or better by Moody's and BBB- or better by Standard & Poor's.
"ASSUMPTION AND CONFIRMATION AGREEMENT" shall mean the Assumption and
Confirmation Agreement, in substantially the form of Exhibit J hereto, dated as
of the Merger Date and executed and delivered by CasTech and Barmet, pursuant to
which, INTER ALIA, CasTech will expressly assume all of the obligations of New
CALC hereunder and under the other Credit Documents and CasTech and Barmet will
confirm all of their respective obligations hereunder and under the other Credit
Documents.
"AVAILABLE COMMITMENTS" shall have the meaning assigned to such term
in Section 2.11 hereof.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BARMET" shall have the meaning assigned to such term in the recital
of parties to this Agreement.
CREDIT AGREEMENT
<PAGE>
-8-
"BASE RATE" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
"BASE RATE LOANS" shall mean Loans that bear interest at rates based
upon the Base Rate.
"BASIC DOCUMENTS" shall mean, collectively, the Credit Documents and
the Acquisition Documents.
"BASLE ACCORD" shall mean the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time or any replacement thereof.
"BORROWER" shall mean each Term Loan Borrower and each Revolving
Credit Borrower; PROVIDED that when reference is made in this Agreement or in
any other Credit Document to the "relevant" Borrower in connection with any
Facility, such reference shall be deemed to refer:
(a) in the case of a Tender Offer Term Loan Facility, to CALI;
(b) in the case of the Tender Offer CALI Revolving Credit Facility,
to CALI;
(c) in the case of the Tender Offer CasTech Revolving Credit
Facility, to CasTech;
(d) in the case of a Post-Merger Term Loan Facility, to CasTech; and
(e) in the case of the Post-Merger Revolving Credit Facility, to each
of CALI, CasTech and Barmet.
"BORROWING BASE" shall mean, as at any date, the sum of:
(a) 85% of the aggregate amount of Eligible Receivables of the
Borrowing Base Group at said date PLUS
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(b) 50% of the aggregate value of Eligible Inventory (other than
Eligible Product-in-Process and Special Inventory) of the Borrowing Base
Group at said date PLUS
(c) 35% of the aggregate value of Eligible Product-in-Process of the
Borrowing Base Group at said date PLUS
(d) 20% of the aggregate value of Special Inventory MINUS
(e) an amount equal to two times the average aggregate monthly
Processing Fees payable by Members of the Borrowing Base Group during the
period of two fiscal quarters of the Parent most recently ended on or
before said date PLUS
(f) the aggregate amount of cover for Letter of Credit Liabilities
held by the Administrative Agent in the Collateral Accounts as contemplated
in Section 2.10(k) hereof;
PROVIDED that not more than 50% of the Borrowing Base shall be composed of
Eligible Inventory, Eligible Product-in-Process and Special Inventory (x) at any
time prior to the General Trigger Date or (y) at any time thereafter, when less
than $75,000,000 is outstanding under a Permitted Receivables Financing. The
"VALUE" of Eligible Inventory and Special Inventory shall be determined at the
lower of cost or market in accordance with GAAP, except that:
(i) initially, cost shall be determined for each Member of the
Borrowing Base Group in the manner described in the audited financial
statements referred to in Section 8.02 hereof relating to such Member; and
(ii) from and after receipt by the Administrative Agent of a notice
from the Parent to such effect, cost shall be determined on a
last-in-first-out basis.
"BORROWING BASE CERTIFICATE" shall mean a certificate of a Responsible
Officer of the Parent, substantially in the form of Exhibit B hereto and
appropriately completed.
"BORROWING BASE GROUP" shall mean: (a) prior to the Merger Date,
collectively, the Parent, CALI and the Subsidiary Guarantors; and (b) from and
after the Merger Date, collectively, the Parent, CALI, CasTech, Barmet and the
Subsidiary Guarantors. A "MEMBER" of the Borrowing Base Group shall mean,
individually, the Parent and each such Subsidiary.
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"BUSINESS DAY" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by a Borrower with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CALCULATION PERIOD" shall mean, at any date, the period of four
consecutive fiscal quarters of the Parent ending on or most recently ended prior
to such date (or, at any date on or prior to September 30, 1997, the period
consisting of the fiscal quarters of the Parent that have ended after October 1,
1996).
"CALI" shall have the meaning assigned to such term in the recital of
parties to this Agreement.
"CALI GUARANTEED OBLIGATIONS" shall have the meaning assigned to such
term in Section 6.01(a) hereof.
"CALI GUARANTORS" shall mean the Parent, the Subsidiary Guarantors
and, from and after the Merger Date, CasTech and Barmet.
"CAPITAL EXPENDITURES" shall mean, for any period, expenditures
(including, without limitation, the aggregate amount of Capital Lease
Obligations paid or payable during such period) made by the Parent or any of its
Subsidiaries to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements, but excluding repairs)
during such period computed in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"CAPITAL STOCK" shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or other ownership
interests,
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including, without limitation, all common stock and all preferred stock.
"CASTECH" shall have the meaning assigned to such term in the recital
of parties to this Agreement.
"CASTECH COLLATERAL ACCOUNT" shall have the meaning assigned to such
term in Section 4.01 of the CasTech Pledge and Security Agreement.
"CASTECH GUARANTEED OBLIGATIONS" shall have the meaning assigned to
such term in Section 6.01(b) hereof.
"CASTECH GUARANTORS" shall mean the Parent, CALI, Barmet and the
Subsidiary Guarantors.
"CASTECH PLEDGE AND SECURITY AGREEMENT" shall mean a Pledge and
Security Agreement substantially in the form of Exhibit D hereto between
CasTech, Barmet and the Administrative Agent, as the same shall be modified and
supplemented and in effect from time to time.
"CASTECH SHARE" shall mean an outstanding share of common stock, par
value $0.01 per share, of CasTech.
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"CHANGE OF CONTROL" shall mean:
(a) that any "person" or "group" (as such terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable,
except that for purposes of this paragraph (b) such person or group shall
be deemed to have "beneficial ownership" of all shares that such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), is or becomes the
"beneficial owner" (as such term is used in Rule 13d-3 promulgated pursuant
to the Exchange Act), directly or indirectly, of more than 25% of the
aggregate voting power of all Voting Stock of the Parent; or
(b) that individuals who on the date hereof constituted the Board of
Directors of the Parent (together with any new directors whose election by
such Board or whose
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nomination for election by the stockholders of the Parent was approved
by a majority of the directors then still in office who were either
directors on the date hereof or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the Board of Directors of the Parent; or
(c) that the Parent shall be required pursuant to the provisions of
the Senior Subordinated Debt Documents (or any other agreement or
instrument relating to or providing for any other Subordinated
Indebtedness) to redeem or repurchase, or make an offer to redeem or
repurchase, all or any portion of the Senior Subordinated Debt (or such
Subordinated Indebtedness, as the case may be) as a result of a change of
control (however defined).
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL ACCOUNTS" shall mean, collectively, the Commonwealth
Collateral Account and the CasTech Collateral Account.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
regulatory body that succeeds to the functions thereof.
"COMMITMENTS" shall mean the Tender Offer Tranche A Term Loan
Commitments, the Tender Offer Tranche B Term Loan Commitments, the Tender Offer
CALI Revolving Credit Commitments, the Tender Offer CasTech Revolving Credit
Commitments, the Post-Merger Tranche A Term Loan Commitments, the Post-Merger
Tranche B Term Loan Commitments and the Post-Merger Revolving Credit
Commitments. Where the context requires, the term "Commitments" shall include
reference to the Swingline Commitment.
"COMMITMENT TERMINATION DATE" shall mean:
(a) in the case of a Tender Offer Term Loan Facility or a Tender
Offer Revolving Credit Facility, the Tender Offer Loan Commitment Termination
Date; and
(b) in the case of the Post-Merger Revolving Credit Facility, the
Post-Merger Revolving Credit Commitment Termination Date.
"COMMODITY HEDGE AGREEMENTS" shall have the meaning assigned to such
term in Section 9.21 hereof.
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"COMMONWEALTH COLLATERAL ACCOUNT" shall have the meaning assigned to
such term in Section 4.01 of the Commonwealth Pledge and Security Agreement.
"COMMONWEALTH GROUP" shall mean the Parent and each of its
Subsidiaries, and a "Member" of the Commonwealth Group shall mean, individually,
the Parent and each of its Subsidiaries.
"COMMONWEALTH PLEDGE AND SECURITY AGREEMENT" shall mean a Pledge and
Security Agreement substantially in the form of Exhibit C hereto between the
Parent, certain of the other Obligors and the Administrative Agent, as the same
shall be modified and supplemented and in effect from time to time.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.09 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement, the
Notes, the Letter of Credit Documents, the New CALC Note Documents and the
Security Documents.
"DEBT ISSUANCE" shall mean any incurrence or other issuance of
Indebtedness by the Parent or any of its Subsidiaries after the date hereof,
other than any Specified Debt Issuance.
"DEFAULT" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"DELIVERY DATE" shall mean the date following the end of a fiscal
quarter of the Parent on which the Lenders receive the Parent's financial
statements pursuant to Section 9.01(a) hereof for such fiscal quarter.
"DISPOSITION" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Parent or any of its Subsidiaries to any other Person excluding (a) any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the
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ordinary course of business and on ordinary business terms and (b)
Receivables Sales.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of the Parent or any of its Subsidiaries or of any warrants,
options or other rights to acquire the same (or to make any payments to any
Person, such as "phantom stock" payments, where the amount thereof is calculated
with reference to the fair market or equity value of the Parent or any of its
Subsidiaries), but excluding dividends payable solely in shares of Capital Stock
of the Parent (or in options, warrants and other rights to acquire such shares
of Capital Stock).
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, for any period, the sum, for the Parent and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) net income for such period PLUS
(b) the amount of Total Interest Expense for such period PLUS (c) income and
other taxes paid during such period PLUS (d) depreciation and amortization for
such period PLUS (e) extraordinary losses for such period MINUS (f)
extraordinary gains for such period, MINUS (g) interest received during such
period, PLUS (h) with respect to periods ending on or prior to the first
anniversary of the Merger Date, Extraordinary Rationalization Costs paid during
such period up to but not exceeding $15,000,000 in the aggregate.
Notwithstanding the foregoing, (i) EBITDA for the three-month period ended
December 31, 1995 shall be deemed to be $18,900,000, (ii) EBITDA for the three-
month period ended March 31, 1996 shall be deemed to be $16,200,000, (iii)
EBITDA for the three-month period ended June 30, 1996 shall be deemed to be
$17,400,000 and (iv) EBITDA for the three-month period ended September 30, 1996
shall be deemed to be $20,000,000.
"ELIGIBLE INVENTORY" of the Borrowing Base Group shall mean, as at any
date, the sum of the following (determined without duplication):
(a) all Inventory (i) that is owned by (and in the possession or
under the control of) any Member of the Borrowing Base Group as at such
date, (ii) that is located in a jurisdiction in the United States of
America, (iii) as
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to which appropriate Uniform Commercial Code financing
statements have been filed naming the relevant Member of the Borrowing Base
Group as "debtor" and the Administrative Agent as "secured party",
(iv) that is in good condition, (v) that meets all standards imposed by any
governmental agency or department or division thereof having regulatory
authority over such Inventory, its use or sale and (vi) that is either
currently usable or currently saleable in the normal course of the
Borrowing Base Group's business without any notice to, or consent of, any
governmental agency or department or division thereof (excluding however,
except to the extent that the Majority Lenders otherwise agree with respect
to any specific customer or Processor, any such Inventory that has been
shipped to a customer of the Borrowing Base Group, including Processors,
even if on a consignment or "sale or return" basis), PLUS
(b) all Inventory being processed by Processors on behalf of a Member
of the Borrowing Base Group as at such date, but only to the extent that
the relevant Member of the Borrowing Base Group shall have filed an
appropriate Uniform Commercial Code financing statement in the respective
jurisdiction in which such Inventory is located naming the respective
Processor as "debtor", such Member as "secured party" and the
Administrative Agent as "assignee" and delivered to the Administrative
Agent an opinion of counsel satisfactory to the Administrative Agent to the
effect that (i) to the extent such arrangement constitutes a consignment or
security interest under applicable law, the relevant Member of the
Borrowing Base Group has a valid perfected first priority security interest
in such Inventory, (ii) by virtue of the Pledge and Security Agreements,
such security interest has been validly assigned to the Administrative
Agent and (iii) accordingly the Administrative Agent has a valid and
perfected security interest in such Inventory under the Pledge and Security
Agreements,
PROVIDED that the Majority Lenders (through the Administrative Agent) may at any
time exclude from Eligible Inventory any type of Inventory that the Majority
Lenders (in their sole discretion) determine to be unmarketable.
"ELIGIBLE PRODUCT-IN-PROCESS" of the Borrowing Base Group shall mean
work-in-process (excluding ingots) net of progress billings, if any (as such
items are classified on the consolidated balance sheet of such Person in
accordance with GAAP and consistent with past practice).
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"ELIGIBLE RECEIVABLES" of the Borrowing Base Group shall mean, as at
any date, the aggregate amount of all Receivables at such date payable to
Members thereof other than the following (determined without duplication):
(a) any Receivable not payable in Dollars;
(b) any Receivable that, at the date of issuance of the invoice
therefor, was payable more than 60 days (or, in the case of an Extended
Payment Receivable, 90 days) after shipment of the related Inventory
(PROVIDED that the aggregate amount of Extended Payment Receivables
included in "Eligible Receivables" that are payable more than 60 days after
shipment of the related Inventory shall not at any time exceed
$15,000,000);
(c) any Receivable owing from a Subsidiary or Affiliate of a Member
of the Borrowing Base Group;
(d) any Receivable owing from an account debtor whose principal place
of business is located outside of the United States of America and Canada;
(e) any Receivable owing from an account debtor that the Majority
Lenders (through the Administrative Agent) have notified the Parent does
not have a satisfactory credit standing (as reasonably determined by the
Majority Lenders);
(f) any Receivable that is more than 60 days past due;
(g) all Receivables of any account debtor if more than 25% of the
aggregate amount of the Receivables owing from such account debtor shall at
the time be more than 30 days past due;
(h) all Receivables owing from any account debtor (other than an
Approved Account Debtor) to the extent the Receivables owing from such
account debtor and its Affiliates at the time exceed 5% of all Receivables
then payable to the Members of the Borrowing Base Group;
(i) any Receivable which has been subject, for 60 days or more, to
any claim on the part of the respective account debtor disputing liability
under such Receivable in whole or in part (but only to the extent the
amount of such Receivable in dispute exceeds $50,000);
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(j) any Receivable evidenced by an Instrument (as defined in the
Pledge and Security Agreements) not in the possession of the Administrative
Agent;
(k) any Receivable representing an obligation for goods sold on
consignment, approval or a sale-or-return basis or subject to any other
repurchase or return arrangement; and
(l) any Receivable sold under a Permitted Receivables Financing.
"EMPLOYEE STOCK REPURCHASES" shall mean Dividend Payments constituting
the purchase, redemption, retirement or other acquisition of shares of Capital
Stock of the Parent, of options on any such shares or related stock appreciation
rights or similar securities, held by officers, directors or employees or former
directors, officers or employees (or their transferees, estates or beneficiaries
under their estates), upon death, disability, retirement, severance or
termination of employment or service or pursuant to any agreement under which
such shares of Capital Stock or related rights were issued.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written notice, claim, demand or other communication (collectively, a "CLAIM")
by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law. The term "Environmental Claim"
shall include, without limitation, any claim by any governmental authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and any claim by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence of Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
Federal, state, local and foreign laws, rules or regulations, and any orders or
decrees, in each case as now or hereafter in effect, relating to the regulation
or protection of human health, safety or the environment or to emissions,
CREDIT AGREEMENT
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discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the environment,
including, without limitation, ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or toxic or hazardous substances
or wastes.
"EQUITY ISSUANCE" shall mean (a) any issuance or sale by the Parent or
any of its Subsidiaries after the Initial Borrowing Date of (i) any of its
Capital Stock, (ii) any warrants or options exercisable in respect of its
Capital Stock (other than any warrants or options issued to directors, officers
or employees of the Parent or any of its Subsidiaries pursuant to employee
benefit or other compensation-related plans established in the ordinary course
of business and any Capital Stock of the Parent or such Subsidiary issued upon
the exercise of such warrants or options) or (iii) any other security or
instrument representing an equity interest (or the right to obtain any equity
interest) in the Parent or any of its Subsidiaries or (b) the receipt by the
Parent or any of its Subsidiaries after the Initial Borrowing Date of any
capital contribution (whether or not evidenced by any equity security issued by
the recipient of such contribution); PROVIDED that Equity Issuance shall not
include (x) any such issuance or sale by any Subsidiary of the Parent to the
Parent or any Wholly Owned Subsidiary of the Parent or (y) any capital
contribution by the Parent or any Wholly Owned Subsidiary of the Parent to any
Subsidiary of the Parent.
"EQUITY RIGHTS" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of Capital Stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which the Parent is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under
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Section 302(f) of ERISA and Section 412(n) of the Code, described in Section
414(m) or (o) of the Code of which the Parent is a member.
"EURODOLLAR BASE RATE" shall mean, with respect to any Eurodollar for
any Interest Period therefor:
(a) the rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) reported on the date two Business Days prior to the first day
of such Interest Period on Telerate Access Service Page 3750 (British
Bankers Association Settlement Rate) as the London Interbank Offered Rate
for Dollar deposits having a term comparable to such Interest Period and in
an amount of $1,000,000 or more; or
(b) if said Page shall cease to be publicly available or if the
information contained on said Page, in the sole judgment of the
Administrative Agent, shall cease to accurately reflect such London
Interbank Offered Rate, the Eurodollar Base Rate shall mean the arithmetic
mean (rounded upwards, if necessary, to the nearest 1/16 of 1%), as
determined by the Administrative Agent, of the rates per annum quoted by
the respective Reference Lenders at approximately 11:00 a.m. London time
(or as soon thereafter as practicable) on the date two Business Days prior
to the first day of such Interest Period for the offering by the respective
Reference Lenders to leading banks in the London interbank market of Dollar
deposits having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the Eurodollar Loan to be made by the
respective Reference Lenders for such Interest Period (and, if any
Reference Lender is not participating in any Eurodollar Loans during any
Interest Period therefor, the Eurodollar Base Rate for such Loans for such
Interest Period shall be determined by reference to the amount of such
Loans that such Reference Lender would have made or had outstanding had it
been participating in such Loan during such Interest Period).
"EURODOLLAR LOANS" shall mean Loans that bear interest at rates based
on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Loan for such Interest Period divided by 1 minus
the
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Reserve Requirement (if any) for such Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 10 hereof.
"EXCESS CASH FLOW" shall mean, for any fiscal year of the Parent, the
excess of (a) EBITDA for such period over (b) the sum of (i) the aggregate
amount of current taxes paid or payable during such period, PLUS (ii) cash
interest paid or payable during such period, PLUS (iii) all regularly scheduled
payments or prepayments of principal of Indebtedness (including, without
limitation, the principal component of any payments in respect of Capital Lease
Obligations) made during such period, PLUS (iv) Capital Expenditures made during
such period (except for any such Capital Expenditures to the extent financed
with the proceeds of Indebtedness, or Capital Lease Obligations, incurred
pursuant to Section 9.07(g) hereof during such period) PLUS (v) the lesser of
(x) $2,400,000 and (y) the aggregate amount of Dividend Payments made with
respect to the Parent's Capital Stock during such period.
"EXCESS CASH FLOW TRIGGER DATE" shall mean the earlier date as of
which:
(a) (i) the ratio of (x) Total Indebtedness as at such date to (y) TTM
EBITDA as at such date shall be less than 2.50 to 1.00, and (ii) the ratio
of (x) TTM EBITDA as at such date to (y) TTM Total Interest Expense as at
such date shall be greater than 3.00 to 1.00; or
(b) the senior unsecured, non-credit enhanced debt securities of the
Parent shall be rated Baa3 or better by Moody's and BBB- or better by
Standard & Poor's.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"EXTENDED PAYMENT RECEIVABLE" shall mean any Receivable having normal
trade terms of more than 60 days and less than or equal to 90 days.
"EXTRAORDINARY RATIONALIZATION COSTS" shall mean rationalization costs
associated with the Acquisition incurred by the Parent and its Subsidiaries, as
determined by the Parent reasonably and in good faith.
CREDIT AGREEMENT
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"FACILITY" shall mean each of the Tender Offer Tranche A Term Loan
Facility, the Tender Offer Tranche B Term Loan Facility, the Tender Offer CALI
Revolving Credit Facility, the Tender Offer CasTech Revolving Credit Facility,
the Post-Merger Tranche A Term Loan Facility, the Post-Merger Tranche B Term
Loan Facility and the Post-Merger Revolving Credit Facility. Where the context
requires, the term "Facility" shall include reference to the Swingline Facility.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to NatWest on such Business Day on such
transactions as determined by the Administrative Agent.
"FIXED CHARGES RATIO" shall mean, as at any date, the ratio of (a) (i)
EBITDA for the then-current Calculation Period MINUS (ii) taxes paid during such
period to (b) the sum of (i) Total Interest Expense for such period PLUS (ii)
all regularly scheduled payments of principal of Senior Indebtedness (including,
without limitation, the principal component of any payments in respect of
Capital Lease Obligations) made during such period.
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement.
"GENERAL TRIGGER DATE" shall mean the earlier date as of which:
(a) (i) the ratio of (x) Total Indebtedness as at such date to (y) TTM
EBITDA as at such date shall be less than 3.00 to 1.00, and (ii) the ratio
of (x) TTM EBITDA as at such date to (y) TTM Total Interest Expense as at
such date shall be greater than 3.00 to 1.00; or
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(b) the senior unsecured, non-credit enhanced debt securities of the
Parent shall be rated Baa3 or better by Moody's and BBB- or better by
Standard & Poor's.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall
have a correlative meaning.
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to such term
in Section 6.01(c) hereof.
"GUARANTORS" shall mean the CALI Guarantors, the CasTech Guarantors
and, with respect to the Joint Obligations, the Borrowers under the Post-Merger
Revolving Credit Facility.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB'S"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Law.
"IMCO RECYCLING" shall mean IMCO Recycling Inc., a Delaware
corporation.
CREDIT AGREEMENT
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"IMCO SUPPLY AGREEMENT" shall mean the Supply Agreement dated as of
March 24, 1992 by and between Barmet and IMCO Recycling, as the same may be
modified and supplemented and in effect from time to time.
"IMMATERIAL SUBSIDIARY" shall mean, as at any date:
(a) CasTech Asia, Ltd. and Commonal Corp., PROVIDED in each case that
such Person shall cease to be an "Immaterial Subsidiary" if at any time
such Person shall have (i) at least 5% of the total consolidated assets of
the Parent and its Subsidiaries (determined as of the last day of the
fiscal year of the Parent ending on or most recently ended prior to such
date) or (ii) at least 5% of the consolidated revenues of the Parent and
its Subsidiaries for the fiscal year of the Parent ending on or most
recently ended prior to such date);
(b) each other Subsidiary of the Parent that, as at the end of and
for the quarterly accounting period ending on or most recently ended prior
to such date, shall have less than $500,000 in assets and less than
$500,000 in gross revenues; and
(c) any Subsidiary described in Section 9.08(h) hereof.
"INDEBTEDNESS" shall mean, for any Person (without duplication):
(a) obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt securities
or the sale of Property to another Person subject to an understanding or
agreement, contingent or otherwise, to repurchase such Property from such
Person);
(b) obligations of such Person to pay the deferred purchase or
acquisition price of Property or services, other than trade accounts
payable (other than for borrowed money) arising, and accrued liabilities
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property of such
Person, whether or not the respective indebtedness so secured has been
assumed by such Person;
CREDIT AGREEMENT
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(d) obligations of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial
institutions for account of such Person;
(e) Capital Lease Obligations of such Person; and
(f) Indebtedness of others Guaranteed by such Person.
"INFORMATION STATEMENT" shall mean any Information Statement filed by
CasTech with the Commission, if less than 90% of the CasTech Shares shall have
been purchased by New CALC, with respect to the Merger and the Merger Agreement
pursuant to Rule 14c-2 promulgated under the Exchange Act, together with all
exhibits and schedules thereto.
"INITIAL BORROWING DATE" shall mean the date on which the initial
Tender Offer Loans are made hereunder.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar Loan,
each period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or (in the event of a Continuation) the last day of the
next preceding Interest Period for such Loan and (subject to the provisions of
Section 2.01(f) hereof) ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as the relevant
Borrower may select as provided in Section 4.05 hereof, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
Notwithstanding the foregoing:
(i) no Interest Period for any Loan under a Post-Merger Term Loan
Facility may commence before and end after any Principal Payment Date
unless, after giving effect thereto, the aggregate principal amount of the
Loans under such Facility having Interest Periods that end after such
Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Loans under such Facility scheduled to be
outstanding after giving effect to the payments of principal required to be
made on such Principal Payment Date;
(ii) if any Interest Period for any Loan under the Post-Merger
Revolving Credit Facility would otherwise end after the Post-Merger
Revolving Credit Commitment
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Termination Date, such Interest Period shall end on the Post-Merger
Revolving Credit Commitment Termination Date;
(iii) each Interest Period that would otherwise end on a day that is
not a Business Day shall end on the next succeeding Business Day (or, if
such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); and
(v) notwithstanding clause (i) and (ii) above, no Interest Period
shall have a duration of less than one month and, if the Interest Period
for any Eurodollar Loan would otherwise be a shorter period, such Loan
shall not be available hereunder for such period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"INVENTORY" shall mean all readily marketable materials, including raw
materials, of a type manufactured or consumed by the Members of the Borrowing
Base Group in the ordinary course of business as presently conducted (including
ingots but excluding, in any event, all work-in-process).
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of Capital Stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of Property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days arising in connection
with the sale of inventory or supplies by such Person in the ordinary course of
business; (c) the entering into of any Guarantee of, or other contingent
obligation with respect to, Indebtedness or other liability of any other Person
and (without duplication) any amount committed to be advanced, lent or extended
to such Person; (d) the entering into of any Interest Rate Protection Agreement;
or (e) the entering into of any Commodity Hedge Agreement.
CREDIT AGREEMENT
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"ISSUING BANK" shall mean NatWest and each other Lender requested by
the Parent and approved by the Administrative Agent to be an "Issuing Bank"
hereunder, as the issuers of Letters of Credit under Section 2.03 hereof,
together with their respective successors and assigns in such capacity.
"JOINT OBLIGATIONS" shall have the meaning assigned to such term in
Section 6.01(c) hereof.
"LENDER" shall have the meaning assigned to such term in the recital
of parties to this Agreement. When reference is made in this Agreement or any
other Credit Document to any "relevant" Lender in connection with any Facility,
such reference shall be deemed to refer to a Lender that has a Commitment,
outstanding Loans or outstanding Notes under such Facility.
"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"LETTER OF CREDIT INTEREST" shall mean, for each Revolving Credit
Lender, such Lender's participation interest (or, in the case of the relevant
Issuing Bank, such Issuing Bank's retained interest) in an Issuing Bank's
liability under Letters of Credit issued by such Issuing Bank and such Lender's
rights and interests in Reimbursement Obligations and fees, interest and other
amounts payable in connection with Letters of Credit and Reimbursement
Obligations.
"LETTER OF CREDIT LIABILITY" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit PLUS (b) the aggregate unpaid principal amount
of all Reimbursement Obligations at such time due and payable in respect of all
drawings made under such Letter of Credit. For purposes of this Agreement, a
Revolving Credit Lender (other than the Issuing Bank that issued the relevant
Letter of Credit) shall be deemed to hold a Letter of Credit Liability in an
amount equal to its participation interest in the related Letter of Credit under
Section 2.03 hereof, and such Issuing Bank shall be deemed to hold a Letter of
Credit Liability in an amount equal to its retained interest in the related
Letter of Credit after giving
CREDIT AGREEMENT
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effect to the acquisition by the Revolving Credit Lenders other than such
Issuing Bank of their participation interests under said Section 2.03.
"LETTERS OF CREDIT" shall have the meaning assigned to such term in
Section 2.03(a) hereof.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Credit Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than an operating lease) relating to such Property.
"LOANS" shall mean each of the Tender Offer Tranche A Term Loans, the
Tender Offer Tranche B Term Loans, the Tender Offer CALI Revolving Credit Loans,
the Tender Offer CasTech Revolving Credit Loans, the Post-Merger Tranche A Term
Loans, the Post-Merger Tranche B Term Loans and the Post-Merger Revolving Credit
Loans. Where the context requires, the term "Loans" shall include reference to
Swingline Loans.
"MAJORITY LENDERS" shall mean:
(a) at any time prior to the Tender Offer Loan Maturity Date, Lenders
holding at least 51% of the aggregate Post-Merger Commitments (or, if the
Post-Merger Commitments have been terminated, Lenders holding at least 51%
of the sum of (i) the aggregate unused Tender Offer Commitments, (ii) the
aggregate unpaid principal amount of the Tender Offer Loans and (iii) the
aggregate amount of all Letter of Credit Liabilities); and
(b) at any time on and after the Tender Offer Loan Maturity Date,
Lenders holding at least 51% of the sum of (i) the aggregate unused Post-
Merger Commitments, (ii) the aggregate unpaid principal amount of the Post-
Merger Loans and (iii) the aggregate amount of all Letter of Credit
Liabilities.
"MAJORITY REVOLVING CREDIT LENDERS" shall mean Revolving Credit
Lenders having at least 51% of the aggregate amount of the Post-Merger Revolving
Credit Commitments or, if the Post-Merger Revolving Credit Commitments shall
have terminated, Lenders holding at least 51% of the sum of (a) the aggregate
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unpaid principal amount of the Revolving Credit Loans PLUS (b) the aggregate
amount of all Letter of Credit Liabilities.
"MAJORITY TRANCHE A TERM LENDERS" shall mean Tranche A Term Loan
Lenders holding at least 51% of the aggregate Post-Merger Tranche A Term Loan
Commitments (or, if the Post-Merger Tranche A Term Loan Commitments have been
terminated, Lenders holding at least 51% of the aggregate unpaid principal
amount of the Tranche A Term Loans).
"MAJORITY TRANCHE B TERM LENDERS" shall mean Tranche B Term Loan
Lenders holding at least 51% of the aggregate Post-Merger Tranche B Term Loan
Commitments (or, if the Post-Merger Tranche B Term Loan Commitments have been
terminated, Lenders holding at least 51% of the aggregate unpaid principal
amount of the Tranche B Term Loans).
"MARGIN STOCK" shall mean "margin stock" within the meaning of
Regulations G, T, U and X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
(a) the business, properties, assets, operations, conditions (financial or
otherwise), or prospects of the Parent and its Subsidiaries (including CALI and
CasTech) taken as a whole, (b) the ability of any Obligor to perform its
obligations under any of the Basic Documents to which it is a party, (c) the
validity or enforceability of any of the Basic Documents, (d) the rights and
remedies of the Lenders and the Administrative Agent under any of the Credit
Documents or (e) the timely payment of the principal of or interest on the Loans
or the Reimbursement Obligations or other amounts payable in connection
therewith.
"MERGER" shall have the meaning assigned to such term in Preliminary
Statement (B) hereof.
"MERGER AGREEMENT" shall mean the Agreement and Plan of Merger dated
as of August 19, 1996 among CasTech, the Parent and New CALC, as the same shall,
subject to Section 9.19 hereof, be modified and supplemented and in effect from
time to time.
"MERGER DATE" shall mean the date on which the Merger shall become
effective in accordance with the terms of the Merger Agreement.
"MOODY'S" shall mean Moody's Investors Service, Inc., or any successor
thereto.
CREDIT AGREEMENT
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"MORTGAGES" shall mean, collectively, one or more Instruments of
Mortgage, Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing executed by one or more Obligors pursuant to Section 7.01(m), 7.03(d),
9.17(a), 9.18 or 9.22 hereof, in each case substantially in the form of
Exhibit F-1 or F-2 hereto, as the case may be and covering the respective
Properties and leasehold interest identified in Schedules I and II thereto, as
said Instruments of Mortgage, Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing shall be modified and supplemented and in effect
from time to time.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions are being made by the Parent or
any ERISA Affiliate and that is covered by Title IV of ERISA.
"NATWEST" shall mean National Westminster Bank Plc.
"NET AVAILABLE PROCEEDS" shall mean:
(i) in the case of any Disposition, the amount of Net Cash
Payments received in connection with such Disposition;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Parent and its Subsidiaries in respect of such Casualty Event net of
(A) reasonable expenses incurred by the Parent and its Subsidiaries in
connection therewith and (B) contractually required repayments of
Indebtedness to the extent secured by a Lien on such Property and any
income and transfer taxes payable by the Parent or any of its Subsidiaries
in respect of such Casualty Event;
(iii) in the case of any Equity Issuance or Debt Issuance, the
aggregate amount of all cash received by the Parent and its Subsidiaries in
respect thereof net of reasonable expenses incurred by the Parent and its
Subsidiaries in connection therewith; and
(iv) in the case of any Receivables Sale, the aggregate amount of
all cash received by the Parent and its Subsidiaries in connection with
such Receivables Sale net of reasonable expenses incurred by the Parent and
its Subsidiaries in connection therewith.
CREDIT AGREEMENT
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"NET CASH PAYMENTS" shall mean, with respect to any Disposition, the
aggregate amount of all cash payments (including, without limitation, all cash
payments received by way of deferred payment pursuant to a note or installment
receivable or otherwise, but only as and when received) received by the Parent
and its Subsidiaries directly or indirectly in connection with such Disposition;
PROVIDED that (a) Net Cash Payments shall be net of (i) the amount of any legal,
title and recording tax expenses, commissions and other fees and expenses paid
or payable by the Parent and its Subsidiaries in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Parent and its Subsidiaries as a result of such
Disposition (but only to the extent that such estimated taxes are in fact paid
to the relevant Federal, state or local governmental authority within six months
of the date of such Disposition) and (b) Net Cash Payments shall be net of any
repayments by the Parent or any of its Subsidiaries of Indebtedness to the
extent that (i) such Indebtedness is secured by a Lien on the Property that is
the subject of such Disposition and (ii) the transferee of (or holder of a Lien
on) such Property requires that such Indebtedness be repaid as a condition to
the purchase of such Property.
"NEW CALC" shall mean (a) prior to the effectiveness of the Merger,
CALC Corporation, a Delaware corporation, and (b) from and after the
effectiveness of the Merger, CasTech, as successor by merger to CALC
Corporation.
"NEW CALC NOTE" shall mean the promissory note, substantially in the
form of Exhibit E hereto, issued by New CALC to CALI.
"NEW CALC NOTE DOCUMENTS" shall mean, collectively, the New CALC Note
and each other agreement, document and other instrument executed and delivered
by New CALC and its Subsidiaries in connection therewith.
"NON-UTILIZATION FEES" shall have the meaning assigned to such term in
Section 2.05(b) hereof.
"NOTES" shall mean each of the Tender Offer Tranche A Term Loan Notes,
the Tender Offer Tranche B Term Loan Notes, the Tender Offer CALI Revolving
Credit Notes, the Tender Offer CasTech Revolving Credit Notes, the Post-Merger
Tranche A Term Loan Notes, the Post-Merger Tranche B Term Loan Notes and the
Post-Merger Revolving Credit Notes. Where the context requires, the term
"Notes" shall include reference to the Swingline Note.
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"OBLIGORS" shall mean, collectively, the Borrowers and the Guarantors.
"OFFER TO PURCHASE" shall mean the Offer to Purchase dated August 22,
1996, issued by New CALC in connection with the Acquisition, as the same shall,
subject to Section 9.19 hereof, be modified and supplemented and in effect from
time to time.
"OTHER EVENT OF DEFAULT" shall mean an Event of Default other than
under Section 10(a) or 9.10 hereof.
"PARENT" shall have the meaning assigned to such term in the recital
of parties to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of the United States of America, or of any
agency thereof, or obligations guaranteed as to principal and interest by
the United States of America, or of any agency thereof, in either case
maturing not more than 90 days from the date of acquisition thereof;
(b) time deposits or certificates of deposit issued by any bank or
trust company organized under the laws of the United States of America or
any state thereof whose outstanding senior long-term debt securities are
rated either A- or better by Standard & Poor's or A3 or better by Moody's,
maturing not more than 90 days from the date of acquisition thereof;
(c) commercial paper rated A-1 or better or P-1 by Standard & Poor's
or Moody's, respectively, maturing not more than 90 days from the date of
acquisition thereof;
(d) repurchase obligations with a term of not more than 30 days for
underlying securities of the types specified in paragraph (a) of this
definition with any bank or trust company meeting the qualifications
specified in paragraph (b) of this definition; and
(e) Investments in money market mutual funds substantially all of the
assets of which are cash or Permitted Investments specified in paragraphs
(a) through (d) of this definition;
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in each case so long as the same (i) provide for the payment of principal and
interest (and not principal alone or interest alone) and (ii) are not subject to
any contingency regarding the payment of principal or interest.
"PERMITTED RECEIVABLES FINANCING" shall mean a transaction or series
of transactions (including amendments, supplements, extensions, renewals,
replacements, refinancings or modifications thereof) pursuant to which a
Securitization Subsidiary purchases Receivables and Related Assets from the
Parent or any of its Subsidiaries and finances such Receivables and Related
Assets through the issuance of Indebtedness or equity interests or through the
sale of the Receivables and Related Assets or a fractional undivided interest in
the Receivables and Related Assets; PROVIDED that (a) the Board of Directors of
the Parent shall have determined in good faith that such Permitted Receivables
Financing is economically fair and reasonable to the Parent and such
Securitization Subsidiary, (b) all sales of Receivables and Related Assets to or
by such Securitization Subsidiary are made at fair market value (as determined
in good faith by the Board of Directors of the Parent), (c) the interest rate
applicable to such financing shall be a market rate of interest as of the time
such financing is entered into, (d) the covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by the
Board of Directors of the Parent), (e) no portion of the Indebtedness of a
Securitization Subsidiary is Guaranteed by or is recourse to the Parent or any
of its other Subsidiaries (other than recourse for customary representations,
warranties, covenants and indemnities, none of which shall related to the
collectibility of the Receivables and Related Assets) and (f) neither the Parent
nor any of its other Subsidiaries has any obligation to maintain or preserve
such Securitization Subsidiary's financial condition.
"PERMITTED REINVESTMENT CAPITAL EXPENDITURES" shall mean Capital
Expenditures made with the Net Available Proceeds of Casualty Events and
Dispositions that the Parent or any of its Subsidiaries is reinvesting in
replacement assets in accordance with Sections 2.10 and 9.05(c) hereof.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"PLACEMENT AGREEMENT" shall mean the Placement Agreement dated as of
September 20, 1996 pursuant to which the
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purchasers of the Senior Subordinated Debt have agreed to purchase and
re-offer the same.
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Parent or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean a rate per annum equal to 2.0% PLUS the
Base Rate as in effect from time to time PLUS the Applicable Margin for Tranche
A Term Loans that are Base Rate Loans, PROVIDED that the "Post-Default Rate"
with respect to principal of a Eurodollar Loan shall be 2.0% PLUS the interest
rate for such Loan as provided in Section 3.02(b) hereof.
"POST-MERGER BORROWING PERIOD" shall mean the period from and
including the Merger Date to but not including the Post-Merger Revolving Credit
Commitment Termination Date.
"POST-MERGER COMMITMENT" shall mean a Post-Merger Tranche A Term Loan
Commitment, a Post-Merger Tranche B Term Loan Commitment or a Post-Merger
Revolving Credit Commitment.
"POST-MERGER FACILITY" shall mean each Post-Merger Term Loan Facility
and the Post-Merger Revolving Credit Facility.
"POST-MERGER LOANS" shall mean the Post-Merger Tranche A Term Loans,
the Post-Merger Tranche B Term Loans and the Post-Merger Revolving Credit Loans.
"POST-MERGER NOTES" shall mean the Post-Merger Tranche A Term Loan
Notes, the Post-Merger Tranche B Term Loan Notes and the Post-Merger Revolving
Credit Notes.
"POST-MERGER REVOLVING CREDIT BORROWERS" shall mean CALI, CasTech and
Barmet.
"POST-MERGER REVOLVING CREDIT COMMITMENT" shall mean, as to each
Revolving Credit Lender, the obligation of such Lender to make Post-Merger
Revolving Credit Loans, and to issue or participate in Letters of Credit under
the Post-Merger Revolving Credit Facility pursuant to Section 2.03 hereof, in an
aggregate principal or face amount at any one time outstanding up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Post-Merger Revolving Credit Commitment" or, in the case of a
Person that becomes a Revolving Credit Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
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instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof).
The original aggregate principal amount of the Post-Merger Revolving Credit
Commitments is $225,000,000.
"POST-MERGER REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean
the Quarterly Date falling on or nearest to September 1, 2001.
"POST-MERGER REVOLVING CREDIT FACILITY" shall mean the revolving
credit facility provided hereunder in respect of the Post-Merger Revolving
Credit Commitments.
"POST-MERGER REVOLVING CREDIT LOANS" shall mean the loans provided for
by Section 2.01(d)(i) hereof, which may be Base Rate Loans and/or Eurodollar
Loans.
"POST-MERGER REVOLVING CREDIT NOTES" shall mean the promissory notes
under the Post-Merger Revolving Credit Facility provided for by Section 2.08(a)
hereof and all promissory notes delivered in substitution or exchange therefor,
in each case as the same shall be modified and supplemented and in effect from
time to time.
"POST-MERGER SWINGLINE LOANS" shall have the meaning assigned to such
term in Section 2.01(e)(ii) hereof.
"POST-MERGER TERM LOAN" shall mean a Post-Merger Tranche A Term Loan
or a Post-Merger Tranche B Term Loan.
"POST-MERGER TERM LOAN FACILITY" shall mean each Post-Merger Tranche A
Term Loan Facility and the Post-Merger Tranche B Term Loan Facility.
"POST-MERGER TERM LOAN NOTE" shall mean a Post-Merger Tranche A Term
Loan Note or a Post-Merger Tranche B Term Loan Note.
"POST-MERGER TRANCHE A TERM LOAN COMMITMENT" shall mean, as to each
Tranche A Term Loan Lender, the obligation of such Lender to make a single Post-
Merger Tranche A Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Post-Merger Tranche A Term Loan Commitment" or, in the case
of a Person that becomes a Tranche A Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment
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pursuant to which such assignment is effected (as the same may be reduced
from time to time pursuant to Section 2.04 or 2.10 hereof). The original
aggregate principal amount of the Post-Merger Tranche A Term Loan Commitments
is $100,000,000.
"POST-MERGER TRANCHE A TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Post-Merger Tranche A Term Loan
Commitments.
"POST-MERGER TRANCHE A TERM LOAN NOTES" shall mean the promissory
notes under the Post-Merger Tranche A Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"POST-MERGER TRANCHE A TERM LOANS" shall mean the loans provided for
by Section 2.01(c)(i) hereof, which may be Base Rate Loans and/or Eurodollar
Loans.
"POST-MERGER TRANCHE B TERM LOAN COMMITMENT" shall mean, as to each
Tranche B Term Loan Lender, the obligation of such Lender to make a single Post-
Merger Tranche B Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Post-Merger Tranche B Term Loan Commitment" or, in the case
of a Person that becomes a Tranche B Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof).
The original aggregate principal amount of the Post-Merger Tranche B Term Loan
Commitments is $100,000,000.
"POST-MERGER TRANCHE B TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Post-Merger Tranche B Term Loan
Commitments.
"POST-MERGER TRANCHE B TERM LOAN NOTES" shall mean the promissory
notes under the Post-Merger Tranche B Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"POST-MERGER TRANCHE B TERM LOANS" shall mean the loans provided for
by Section 2.01(c)(ii) hereof, which may be Base Rate Loans and/or Eurodollar
Loans.
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"PRIME RATE" shall mean, at any time, the Bank Prime Loan rate then
most recently published by the Board of Governors of the Federal Reserve System
in Federal Reserve Statistical Release H.15(519) entitled "Selected Interest
Rates", or any successor publication.
"PRINCIPAL PAYMENT DATES" shall mean the Quarterly Dates falling on or
nearest to March 1, June 1, September 1 and December 1 of each year, commencing
with December 1, 1996 through and including September 1, 2003.
"PROCESSING FEES" shall mean commissions and processing fees payable
to bailees, warehousemen, terminal operators, Processors and other third parties
holding Inventory of Members of the Borrowing Base Group, but excluding, in any
event, fees payable to IMCO Recycling under the IMCO Supply Agreement.
"PROCESSOR" shall mean a third party (including, without limitation,
IMCO Recycling) that processes Inventory of one or more Members of the Borrowing
Base Group.
"PROPERTY" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"QUARTERLY DATES" shall mean the first Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"QUARTERLY FINANCIAL STATEMENTS" shall mean the financial statements
furnished to the Lenders under Section 9.01(a) hereof (and, prior to the
delivery of the first financial statements under said Section 9.01(a), the
quarterly financial statements of the Parent as at June 30, 1996 referred to in
Section 8.02(a) hereof).
"RECAPTURE DATE" shall mean the last day of each Recapture Period.
"RECAPTURE PERIOD" shall mean:
(a) the period commencing on the Tender Offer Closing Date and ending
on the last day of the calendar month following the first date on which the
Parent and/or any of its Subsidiaries receives Net Cash Payments which,
together with all Net Cash Payments received by the Parent and its
Subsidiaries on and after the Tender Offer Closing Date, equal or exceed in
the aggregate $1,000,000; and
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(b) thereafter, each period commencing on the date immediately
following the last day of the immediately preceding Recapture Period and
ending on the last day of the calendar month following the first date on
which the Parent and/or any of its Subsidiaries receives Net Cash Payments
which, together with all Net Cash Payments received by the Parent and its
Subsidiaries on and after the date immediately following the last day of
the immediately preceding Recapture Period, equal or exceed in the
aggregate $1,000,000.
"RECEIVABLES" of any Member of the Borrowing Base Group shall mean, as
at any date, the unpaid portion of the obligation, as stated on the respective
invoice, of a customer of such Member in respect of Inventory sold and shipped
by such Member to such customer, net of any credits, rebates or offsets owed to
such customer and also net of any commissions payable to third parties (and for
purposes hereof, a credit or rebate paid by check or draft of such Member or any
of its Subsidiaries shall be deemed to be outstanding until such check or draft
shall have been debited to the account of such Person on which such check or
draft was drawn).
"RECEIVABLES AND RELATED ASSETS" shall mean accounts receivable and
instruments, chattel paper, obligations, general intangibles and other similar
assets, in each case relating to such receivables, including interests in
merchandise or goods, the sale or lease of which gave rise to such receivable,
related contractual rights, guarantees, insurance proceeds, collections, other
related assets and proceeds of all of the foregoing.
"RECEIVABLES SALE" shall mean any sale, transfer or other disposition
of Receivables and Related Assets by the Parent or any of its Subsidiaries, but
excluding sales or transfers of Receivables and Related Assets for purposes of
collection in the ordinary course of business and consistent with past practice.
"REFERENCE LENDERS" shall mean NatWest and such other Lender or
Lenders as the Administrative Agent and the Parent shall agree (or their
respective Applicable Lending Offices, as the case may be).
"REGULATION A", "REGULATION D", "REGULATION G", "REGULATION T",
"REGULATION U" and "REGULATION X" shall mean, respectively, Regulations A, D, G,
T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
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"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date hereof in Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"REIMBURSEMENT OBLIGATION" shall mean, at any time, the obligations of
a Revolving Credit Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
an Issuing Bank in respect of any drawings under a Letter of Credit issued by
such Issuing Bank under such Borrower's Revolving Credit Facility.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the environment, including, without limitation, the movement of Hazardous
Materials through ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata.
"RELEVANT PARTIES" shall have the meaning assigned to such term in
Section 10(b) hereof.
"RESERVED COMMITMENTS" shall have the meaning assigned to such term in
Section 2.11(a) hereof.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
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"RESPONSIBLE OFFICER" shall mean, with respect to any Person, the
Treasurer, Chief Financial Officer and Controller of such Person and such other
officers of the relevant Person as the Administrative Agent may agree.
"REVOLVING CREDIT BORROWER" shall mean: (a) with respect to the
Tender Offer CALI Revolving Credit Facility, CALI; (b) with respect to the
Tender Offer CasTech Revolving Credit Facility, CasTech; and (c) with respect to
the Post-Merger Revolving Credit Facility, each of CALI, CasTech and Barmet.
"REVOLVING CREDIT COMMITMENT" shall mean a Tender Offer Revolving
Credit Commitment or a Post-Merger Revolving Credit Commitment.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect to
any Revolving Credit Lender under any Revolving Credit Facility, the ratio of
(a) the amount of the Revolving Credit Commitment of such Lender under such
Facility to (b) the aggregate amount of the Revolving Credit Commitments of all
of the Lenders under such Facility.
"REVOLVING CREDIT FACILITY" shall mean a Tender Offer Revolving Credit
Facility or the Post-Merger Revolving Credit Facility.
"REVOLVING CREDIT LENDERS" shall mean (a) on the date hereof, the
Lenders having Revolving Credit Commitments on Schedule I hereto and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans or
and Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"REVOLVING CREDIT LOANS" shall mean the Tender Offer CALI Revolving
Credit Loans, the Tender Offer CasTech Revolving Credit Loans and the Post-
Merger Revolving Credit Loans.
"REVOLVING CREDIT NON-UTILIZATION FEE" shall have the meaning assigned
to such term in Section 2.05(a) hereof.
"SECURITIZATION SUBSIDIARY" shall mean a Subsidiary of the Parent (all
of the outstanding Capital Stock of which, other than de minimis preferred stock
and director's qualifying shares, if any, is owned, directly or indirectly, by
the Parent) or another special purpose vehicle that is established for the
limited purpose of acquiring and financing Receivables and Related Assets of the
Parent and/or any of its Subsidiaries and engaging in activities ancillary
thereto.
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"SECURITY DOCUMENTS" shall mean, collectively, the Commonwealth Pledge
and Security Agreement, the CasTech Pledge and Security Agreement, the Mortgages
and all Uniform Commercial Code financing statements required thereby to be
filed with respect to the security interests in personal Property and fixtures
created pursuant thereto.
"SENIOR INDEBTEDNESS" shall mean all Indebtedness of the Parent and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) other than Subordinated Indebtedness.
"SENIOR INDEBTEDNESS TO EBITDA RATIO" shall mean:
(a) for determinations prior to September 30, 1996, the ratio of (i)
Senior Indebtedness outstanding at the close of business on the Merger Date
to (ii) $79,900,000; and
(b) for determinations on and after September 30, 1996, the ratio of
(i) Senior Indebtedness outstanding as at the last day of any fiscal
quarter of the Parent ending on or most recently ended prior to such day to
(ii) TTM EBITDA as at such day.
"SENIOR INTEREST COVERAGE RATIO" shall mean, at any date, the ratio of
(a) EBITDA for the then-current Calculation Period to (b) Senior Interest
Expense for such period.
"SENIOR INTEREST EXPENSE" shall mean, for any period, the sum, for the
Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of all interest in respect of Specified
Senior Bank Debt accrued during such period (whether or not actually paid during
such period).
"SENIOR LEVERAGE RATIO" shall mean, as at any date, the ratio of (a)
Specified Senior Bank Debt as at such date to (b) EBITDA for the period of four
consecutive fiscal quarters of the Parent ending on or most recently ended prior
to such date for which Quarterly Financial Statements have been delivered.
"SENIOR SUBORDINATED DEBT" shall mean the Indebtedness of the Parent
in respect of the 10-3/4% Senior Subordinated Notes of the Parent due October 1,
2006 issued under the Senior Subordinated Debt Indenture.
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"SENIOR SUBORDINATED DEBT DOCUMENTS" shall mean the Placement
Agreement, the Senior Subordinated Debt Indenture, the securities or other
instruments evidencing the Senior Subordinated Debt and all other documents,
instruments and agreements executed and delivered in connection with the
original issuance of the Senior Subordinated Debt, in each case, as the same
shall, subject to Section 9.19 hereof, be modified and supplemented and in
effect from time to time.
"SENIOR SUBORDINATED DEBT INDENTURE" shall mean the Indenture dated as
of September 20, 1996 between the Parent, each of the subsidiary guarantors
party thereto and Harris Trust and Savings Bank, as Trustee, as the same shall,
subject to Section 9.19 hereof, be modified and supplemented and in effect from
time to time.
"SIGNING DATE" shall mean the earliest date as of which each of the
intended parties hereto shall have executed and delivered counterparts hereof.
"SPECIAL INVENTORY" of the Borrowing Base Group shall mean, as at any
date, all Inventory (other than Eligible Inventory) of the Alflex division of
CasTech constituting finished goods being held by third parties on consignment
on behalf of Members of the Borrowing Base Group in the ordinary course of
business as at such date, but only to the extent that the relevant Member of the
Borrowing Base Group shall have filed an appropriate Uniform Commercial Code
financing statement in the respective jurisdiction in which such Inventory is
located naming the respective Processor or other third party as "debtor", such
Member as "secured party" and the Administrative Agent as "assignee"; PROVIDED
that the Majority Lenders (through the Administrative Agent) may at any time
exclude from Special Inventory any type of Inventory that the Majority Lenders
(in their sole discretion) determine to be unmarketable.
"SPECIFIED DEBT ISSUANCE" shall mean any incurrence or issuance of
Indebtedness under Section 9.07 hereof other than under paragraph (g) thereof
(except to the extent such Indebtedness constitutes Capital Lease Obligations
and other Indebtedness secured by Liens permitted under Section 9.06(i)
or 9.06(j) hereof).
"SPECIFIED EVENT OF DEFAULT PERIOD" shall mean:
(a) any period during which an Event of Default has occurred and is
continuing under Section 10(a) hereof;
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(b) any period during which an Event of Default has occurred and is
continuing under Section 9.10 hereof; and
(c) the period specified below relating to any Other Event of Default
that continues unremedied for a period of 30 or more days after notice
thereof to the Parent by the Administrative Agent or any Lender (through
the Administrative Agent). For purposes of this paragraph (c), the
"Specified Event of Default Period" relating to any Other Event of Default
shall be the period:
(i) commencing on the earlier of (x) the date on which the
Parent first obtains knowledge of the occurrence of such Other Event
of Default and (y) the date on which notice of such Other Event of
Default is delivered to the Parent by the Administrative Agent or any
Lender (through the Administrative Agent) and
(ii) ending on the date on which such Other Event of Default is
cured or waived.
"SPECIFIED SENIOR BANK DEBT" shall mean all Indebtedness of the Parent
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) in respect of Tranche A Term Loans, Revolving Credit Loans
and Letters of Credit.
"STANDARD & POOR'S" shall mean Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., or any successor thereto.
"STOCK REPURCHASES" shall mean Dividend Payments constituting the
purchase, redemption, retirement or other acquisition of shares of any class of
Capital Stock of the Parent, but excluding Employee Stock Repurchases.
"SUBORDINATED INDEBTEDNESS" shall mean, collectively, (a) Senior
Subordinated Debt and (b) other Indebtedness (i) for which the Parent is
directly and primarily liable, (ii) in respect of which none of its Subsidiaries
is contingently or otherwise obligated and (iii) that is subordinated to the
obligations of the Obligors hereunder on terms, and pursuant to documentation
containing other terms (including interest, amortization, covenants and events
of default), no less favorable to the Lenders than the terms set forth in the
Senior Subordinated Debt Documents or otherwise in form and substance
satisfactory to the Majority Lenders.
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"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SUBSIDIARY GUARANTORS" shall have the meaning assigned to such term
in the recital of parties to this Agreement.
"SWINGLINE COMMITMENT" shall mean the obligation of NatWest to make
Swingline Loans in an aggregate principal at any one time outstanding up to but
not exceeding $5,000,000.
"SWINGLINE FACILITY" shall mean the swingline facility provided
hereunder in respect of the Swingline Commitments.
"SWINGLINE LOANS" shall have the meaning assigned to such term in
Section 2.01(e)(ii) hereof.
"SWINGLINE NOTE" shall mean a promissory note provided for by
Section 2.08(a) hereof and any promissory note delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TENDER OFFER" shall mean the offer by New CALC to purchase for cash
all of the CasTech Shares pursuant to the Tender Offer Documents.
"TENDER OFFER BORROWING PERIOD" shall mean the period from and
including the Tender Offer Closing Date to but not including the Tender Offer
Loan Commitment Termination Date.
"TENDER OFFER CALI REVOLVING CREDIT COMMITMENT" shall mean, as to each
Revolving Credit Lender, the obligation of such Lender to make Tender Offer CALI
Revolving Credit Loans, and to issue or participate in Letters of Credit
pursuant to Section 2.03 hereof, in an aggregate principal or face amount at any
one time outstanding up to but not exceeding the amount set opposite the name of
such Lender on Schedule I hereto under the
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caption "Tender Offer CALI Revolving Credit Commitment" or, in the case of a
Person that becomes a Revolving Credit Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as
the same may be reduced from time to time pursuant to Section 2.04 or 2.10
hereof). The original aggregate principal amount of the Tender Offer CALI
Revolving Credit Commitments is $175,000,000.
"TENDER OFFER CALI REVOLVING CREDIT FACILITY" shall mean the
revolving credit facility provided hereunder in respect of the Tender Offer CALI
Revolving Credit Commitments.
"TENDER OFFER CALI REVOLVING CREDIT LOAN" shall mean the loans
provided for by Section 2.01(b)(i) hereof.
"TENDER OFFER CALI REVOLVING CREDIT NOTES" shall mean the promissory
notes under the Tender Offer CALI Revolving Credit Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TENDER OFFER CASTECH REVOLVING CREDIT COMMITMENT" shall mean, as to
each Revolving Credit Lender, the obligation of such Lender to make Tender Offer
CasTech Revolving Credit Loans, and to issue or participate in Letters of Credit
under the Tender Offer CasTech Revolving Credit Facility pursuant to
Section 2.03 hereof, in an aggregate principal or face amount at any one time
outstanding up to but not exceeding the amount set opposite the name of such
Lender on Schedule I hereto under the caption "Tender Offer CasTech Revolving
Credit Commitment" or, in the case of a Person that becomes a Revolving Credit
Lender pursuant to an assignment permitted under Section 12.06(b) hereof, as
specified in the respective instrument of assignment pursuant to which such
assignment is effected (as the same may be reduced from time to time pursuant to
Section 2.04 or 2.10 hereof). The original aggregate principal amount of the
Tender Offer CasTech Revolving Credit Commitments is $50,000,000.
"TENDER OFFER CASTECH REVOLVING CREDIT FACILITY" shall mean the
revolving credit facility provided hereunder in respect of the Tender Offer
CasTech Revolving Credit Commitments.
"TENDER OFFER CASTECH REVOLVING CREDIT LOAN" shall mean the loans
provided for by Section 2.01(b)(ii) hereof.
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"TENDER OFFER CASTECH REVOLVING CREDIT NOTES" shall mean the
promissory notes under the Tender Offer CasTech Revolving Credit Facility
provided for by Section 2.08(a) hereof and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"TENDER OFFER CLOSING DATE" shall mean the date (on or before
September 30, 1996) of the initial purchase by New CALC of the CasTech Shares
tendered pursuant to the Tender Offer.
"TENDER OFFER COMMITMENT" shall mean a Tender Offer Tranche A Term
Loan Commitment, a Tender Offer Tranche B Term Loan Commitment, a Tender Offer
CALI Revolving Credit Commitment or a Tender Offer CasTech Revolving Credit
Commitment.
"TENDER OFFER DOCUMENTS" shall mean the Offer to Purchase, the
Schedule 14D-1 filed by New CALC with respect to the Offer to Purchase, and all
amendments, exhibits and schedules thereto and related documents distributed to
the shareholders of CasTech or filed with the Commission in connection with the
Acquisition, in each case prior to the date of this Agreement.
"TENDER OFFER FACILITY" shall mean each Tender Offer Term Loan
Facility and each Tender Offer Revolving Credit Facility.
"TENDER OFFER LOAN COMMITMENT TERMINATION DATE" shall mean the earlier
of (a) the Merger Date and (b) November 29, 1996.
"TENDER OFFER LOAN MATURITY DATE" shall mean the earlier of (a) the
date 180 days after the Tender Offer Closing Date (or, if such date is not a
Business Day, the next preceding Business Day) and (b) the Merger Date.
"TENDER OFFER LOANS" shall mean the Tender Offer Tranche A Term Loans,
the Tender Offer Tranche B Term Loans, the Tender Offer CALI Revolving Credit
Loans and the Tender Offer CasTech Revolving Credit Loans.
"TENDER OFFER NOTES" shall mean each of the Tender Offer Tranche A
Term Loan Notes, the Tender Offer Tranche B Term Loan Notes, the Tender Offer
CALI Revolving Credit Notes and the Tender Offer CasTech Revolving Credit Notes.
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"TENDER OFFER REVOLVING CREDIT COMMITMENT" shall mean a Tender Offer
CALI Revolving Credit Commitment or a Tender Offer CasTech Revolving Credit
Commitment.
"TENDER OFFER REVOLVING CREDIT FACILITY" shall mean each of the Tender
Offer CALI Revolving Credit Facility and the Tender Offer CasTech Revolving
Credit Facility.
"TENDER OFFER REVOLVING CREDIT LOAN" shall mean a Tender Offer CALI
Revolving Credit Loan or a Tender Offer CasTech Revolving Credit Loan.
"TENDER OFFER REVOLVING CREDIT NOTE" shall mean a Tender Offer CALI
Revolving Credit Note or a Tender Offer CasTech Revolving Credit Note.
"TENDER OFFER SWINGLINE LOANS" shall have the meaning assigned to such
term in Section 2.01(e)(i) hereof.
"TENDER OFFER TERM LOAN" shall mean a Tender Offer Tranche A Term Loan
or a Tender Offer Tranche B Term Loan.
"TENDER OFFER TERM LOAN FACILITY" shall mean each of the Tender Offer
Tranche A Term Loan Facility and the Tender Offer Tranche B Term Loan Facility.
"TENDER OFFER TERM LOAN LENDER" shall mean a Tender Offer Tranche A
Term Loan Lender or a Tender Offer Tranche B Term Loan Lender.
"TENDER OFFER TERM LOAN NOTE" shall mean a Tender Offer Tranche A Term
Loan Note or a Tender Offer Tranche B Term Loan Note.
"TENDER OFFER TRANCHE A TERM LOANS" shall mean the loans provided for
by Section 2.01(a)(i) hereof.
"TENDER OFFER TRANCHE A TERM LOAN COMMITMENT" shall mean, as to each
Tranche A Term Loan Lender, the obligation of such Lender to make a single
Tender Offer Tranche A Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Tender Offer Tranche A Term Loan Commitment" or, in the case
of a Person that becomes a Tranche A Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10
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hereof). The original aggregate principal amount of the Tender Offer Tranche
A Term Loan Commitments is $100,000,000.
"TENDER OFFER TRANCHE A TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Tender Offer Tranche A Term Loan
Commitments.
"TENDER OFFER TRANCHE A TERM LOAN NOTES" shall mean the promissory
notes under the Tender Offer Tranche A Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TENDER OFFER TRANCHE B TERM LOANS" shall mean the loans provided for
by Section 2.01(a)(ii) hereof.
"TENDER OFFER TRANCHE B TERM LOAN COMMITMENT" shall mean, as to each
Tranche B Term Loan Lender, the obligation of such Lender to make a single
Tender Offer Tranche B Term Loan in an aggregate principal amount up to but not
exceeding the amount set opposite the name of such Lender on Schedule I hereto
under the caption "Tender Offer Tranche B Term Loan Commitment" or, in the case
of a Person that becomes a Tranche B Term Loan Lender pursuant to an assignment
permitted under Section 12.06(b) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced from time to time pursuant to Section 2.04 or 2.10 hereof).
The original aggregate principal amount of the Tender Offer Tranche B Term Loan
Commitments is $100,000,000.
"TENDER OFFER TRANCHE B TERM LOAN FACILITY" shall mean the term loan
facility provided hereunder in respect of the Tender Offer Tranche B Term Loan
Commitments.
"TENDER OFFER TRANCHE B TERM LOAN NOTES" shall mean the promissory
notes under the Tender Offer Tranche B Term Loan Facility provided for by
Section 2.08(a) hereof and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"TERM LOAN" shall mean a Tranche A Term Loan or a Tranche B Term Loan.
"TERM LOAN BORROWER" shall mean: (a) with respect to the Tender Offer
Term Loan Facilities, CALI; and (c) with respect to the Post-Merger Term Loan
Facilities, CasTech.
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"TERM LOAN FACILITY" shall mean each of the Tender Offer Tranche A
Term Loan Facility, the Tender Offer Tranche B Term Loan Facility, the Post-
Merger Tranche A Term Loan Facility and the Post-Merger Tranche B Term Loan
Facility.
"TERM LOAN LENDER" shall mean a Tranche A Term Loan Lender or a
Tranche B Term Loan Lender.
"TERM LOAN NON-UTILIZATION FEE" shall have the meaning assigned to
such term in Section 2.05(b) hereof.
"TOTAL INDEBTEDNESS" shall mean, as at any date, the sum, for the
Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all Indebtedness
and (b) all other liabilities that should be classified as indebtedness on the
Parent's consolidated balance sheet.
"TOTAL INTEREST COVERAGE RATIO" shall mean, at any date, the ratio of
(a) EBITDA for the then-current Calculation Period to (b) Total Interest Expense
for such period.
"TOTAL INTEREST EXPENSE" shall mean, for any period, the sum, for the
Parent and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations) accrued or capitalized
during such period (whether or not actually paid during such period) PLUS the
net amount payable (or MINUS the net amount receivable) under Interest Rate
Protection Agreements during such period (whether or not actually paid or
received during such period).
"TOTAL LEVERAGE RATIO" shall mean, as at any date of determination,
the ratio of (a) Total Indebtedness as at such date to (b) EBITDA for the period
of four consecutive fiscal quarters of the Parent ending on or most recently
ended prior to such date for which Quarterly Financial Statements have been
delivered.
"TRANCHE A TERM LOAN" shall mean a Tender Offer Tranche A Term Loan or
a Post-Merger Tranche A Term Loan.
"TRANCHE A TERM LOAN COMMITMENT" shall mean a Tender Offer Tranche A
Term Loan Commitment or a Post-Merger Tranche A Term Loan Commitment.
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"TRANCHE A TERM LOAN LENDERS" shall mean (a) on the date hereof, the
Lenders having Tranche A Term Loan Commitments on Schedule I hereto and
(b) thereafter, the Lenders from time to time holding Tranche A Term Loans and
Tranche A Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"TRANCHE A TERM LOAN NOTE" shall mean a Tender Offer Tranche A Term
Loan Note or a Post-Merger Tranche A Term Loan Note.
"TRANCHE B TERM LOAN" shall mean a Tender Offer Tranche B Term Loan or
a Post-Merger Tranche B Term Loan.
"TRANCHE B TERM LOAN COMMITMENT" shall mean a Tender Offer Tranche B
Term Loan Commitment or a Post-Merger Tranche B Term Loan Commitment.
"TRANCHE B TERM LOAN LENDERS" shall mean (a) on the date hereof, the
Lenders having Tranche B Term Loan Commitments on Schedule I hereto and
(b) thereafter, the Lenders from time to time holding Tranche B Term Loans and
Tranche B Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b) hereof.
"TRANCHE B TERM LOAN NOTE" shall mean a Tender Offer Tranche B Term
Loan Note or a Post-Merger Tranche B Term Loan Note.
"TTM EBITDA" shall mean, as at any date, EBITDA for the twelve-month
period ending on such date (if such date is the last day of a calendar month) or
on the last day of the calendar month most recently ended prior to such date.
"TTM TOTAL INTEREST EXPENSE" shall mean, as at any date, Total
Interest Expense for the twelve-month period ending on such date (if such date
is the last day of a calendar month) or on the last day of the calendar month
most recently ended prior to such date.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"VOTING STOCK" shall mean, with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
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"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in paragraph (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Lenders hereunder (which, prior to the delivery of
the first financial statements under Section 9.01 hereof, shall mean the audited
financial statements as at December 31, 1995 referred to in Section 8.02
hereof). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Lenders pursuant to Section 9.01 hereof
(or, prior to the delivery of the first financial statements under Section 9.01
hereof, used in the preparation of the audited financial statements as at
December 31, 1995 referred to in Section 8.02 hereof) unless (i) the Parent
shall have objected to determining such compliance on such basis at the time of
delivery of such financial statements or (ii) the Majority Lenders shall so
object in writing within 30 days after delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 9.01 hereof,
shall mean the audited financial statements referred to in Section 8.02 hereof).
(b) The Parent shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 9.01
hereof (i) a description in reasonable detail of any material variation between
the
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application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
paragraph (a) above and (ii) reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) On the date hereof, (i) the last day of the fiscal year of
CasTech and each of its Subsidiaries is March 31, and the last days of the first
three fiscal quarters in each of their fiscal years is June 30, September 30 and
December 31, and (ii) the last day of the fiscal year of the Parent and each of
its Subsidiaries (other than CasTech and CasTech's Subsidiaries) is December 31,
and the last days of the first three fiscal quarters in each of their fiscal
years is March 31, June 30 and September 30. To enable the ready and consistent
determination of compliance with the covenants set forth in Section 9 hereof,
(x) as promptly as practicable following the Merger Date, the Parent will cause
CasTech and each of CasTech's Subsidiaries to change the last day of their
fiscal year to December 31, and to change the last days of the first three
fiscal quarters in each of their fiscal years to March 31, June 30 and September
30, respectively; and (y) except as provided in the preceding paragraph (x),
neither the Parent nor any of its Subsidiaries (including CasTech and each of
CasTech's Subsidiaries) will change the last day of its fiscal year or the last
days of the first three fiscal quarters in each of its fiscal years.
1.03 TYPES OF LOANS. Loans hereunder are distinguished by "Type".
The "Type" of a Loan refers to whether such Loan is a Base Rate Loan or a
Eurodollar Loan, each of which constitutes a Type.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.01 LOANS.
(a) TENDER OFFER TERM LOANS.
(i) TRANCHE A. Each Tranche A Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CALI in Dollars during the Tender Offer Borrowing Period in an aggregate
principal amount up to but not exceeding the amount of the Tender Offer
Tranche A Term Loan Commitment of such Lender.
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(ii) TRANCHE B. Each Tranche B Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CALI in Dollars during the Tender Offer Borrowing Period in an aggregate
principal amount up to but not exceeding the amount of the Tender Offer
Tranche B Term Loan Commitment of such Lender.
(iii) ALL TENDER OFFER TERM LOANS. Unless the Lenders otherwise
agree, Tender Offer Term Loans may be made only as Base Rate Loans.
(b) TENDER OFFER REVOLVING CREDIT LOANS.
(i) CALI. Each Revolving Credit Lender severally agrees, on the
terms and conditions of this Agreement, to make loans to CALI in Dollars
during the Tender Offer Borrowing Period in an aggregate principal amount
at any one time outstanding up to but not exceeding the amount of the
Tender Offer CALI Revolving Credit Commitment of such Lender as in effect
from time to time, PROVIDED that in no event shall the aggregate principal
amount of all Loans (including all Swingline Loans), together with the
aggregate amount of all Letter of Credit Liabilities, under the Tender
Offer CALI Revolving Credit Facility during the Tender Offer Borrowing
Period exceed the aggregate amount of the Commitments under such Facility
as in effect from time to time.
(ii) CASTECH. Each Revolving Credit Lender severally agrees, on the
terms and conditions of this Agreement, to make loans to CasTech in Dollars
during the Tender Offer Borrowing Period in an aggregate principal amount
at any one time outstanding up to but not exceeding the amount of the
Tender Offer CasTech Revolving Credit Commitment of such Lender as in
effect from time to time, PROVIDED that in no event shall the aggregate
principal amount of all Loans, together with the aggregate amount of all
Letter of Credit Liabilities, under the Tender Offer CasTech Revolving
Credit Facility during the Tender Offer Borrowing Period exceed the
aggregate amount of the Commitments under such Facility as in effect from
time to time.
(iii) ALL TENDER OFFER REVOLVING CREDIT LOANS. Unless the Lenders
otherwise agree, Tender Offer Revolving Credit Loans may be made only as
Base Rate Loans.
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(c) POST-MERGER TERM LOANS.
(i) TRANCHE A. Each Tranche A Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CasTech in Dollars on the Merger Date in an aggregate principal amount up
to but not exceeding the amount of the Post-Merger Tranche A Term Loan
Commitment of such Lender.
(ii) TRANCHE B. Each Tranche B Term Loan Lender severally agrees, on
the terms and conditions of this Agreement, to make a single term loan to
CasTech in Dollars on the Merger Date in an aggregate principal amount up
to but not exceeding the amount of the Post-Merger Tranche B Term Loan
Commitment of such Lender.
(iii) ALL POST-MERGER TERM LOANS. CasTech may Convert Loans of one
Type under one Post-Merger Term Loan Facility into Loans of another Type
under the same Facility (as provided in Section 2.09 hereof) or Continue
Loans of one Type under one Post-Merger Term Loan Facility as Loans of the
same Type under the same Facility (as provided in Section 2.09 hereof).
(d) POST-MERGER REVOLVING CREDIT LOANS.
(i) CALI, CASTECH AND BARMET. Each Revolving Credit Lender severally
agrees, on the terms and conditions of this Agreement, to make loans to
each of CALI, CasTech and Barmet in Dollars during the Post-Merger
Borrowing Period in an aggregate principal amount at any one time
outstanding (as to all such Borrowers) up to but not exceeding the amount
of the Post-Merger Revolving Credit Commitment of such Lender as in effect
from time to time, PROVIDED that in no event shall the sum of (x) the
aggregate principal amount of all Loans (including all Swingline Loans),
together with the aggregate amount of all Letter of Credit Liabilities,
under the Post-Merger Revolving Credit Facility PLUS (y) the aggregate
amount of the Reserved Commitments exceed the aggregate amount of the
Commitments under such Facility as in effect from time to time.
(ii) ALL POST-MERGER REVOLVING CREDIT LOANS. Subject to the terms
and conditions of this Agreement, during the Post-Merger Borrowing Period
the Revolving Credit Borrowers may borrow, repay and reborrow the amount of
the Commitments under the Post-Merger Revolving Credit Facility by means of
Base Rate Loans and Eurodollar Loans and may Convert Loans
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of one Type under the Post-Merger Revolving Credit Facility into Loans of
another Type under such Facility (as provided in Section 2.09 hereof) or
Continue Loans of one Type under the Post-Merger Revolving Credit Facility
as Loans of the same Type under such Facility (as provided in Section 2.09
hereof).
(e) SWINGLINE LOANS. Subject to the terms and conditions of this
Agreement:
(i) in addition to the Tender Offer CALI Revolving Credit Loans
provided for in Section 2.01(b)(i) hereof, NatWest agrees to make loans
("TENDER OFFER SWINGLINE LOANS") to CALI during the Tender Offer Borrowing
Period; and
(ii) in addition to the Post-Merger Revolving Credit Loans provided
for in Section 2.01(d)(i) hereof, NatWest agrees to make loans ("POST-
MERGER SWINGLINE LOANS" and, together with Tender Offer Swingline Loans,
the "SWINGLINE LOANS") to the Post-Merger Revolving Credit Borrowers during
the Post-Merger Borrowing Period.
During the Tender Offer Borrowing Period and the Post-Merger Borrowing Period,
as the case may be, the relevant Borrowers may borrow, repay and reborrow
Swingline Loans, PROVIDED that the sum of (x) the aggregate principal amount of
all Loans (including all Swingline Loans), together with the aggregate amount of
all Letter of Credit Liabilities, under the relevant Revolving Credit Facility
PLUS (y) in the case of the Post-Merger Revolving Credit Facility, the Reserved
Commitments, shall not at any time exceed the aggregate amount of the
Commitments thereunder nor shall the aggregate principal amount of all Swingline
Loans exceed $5,000,000. All Swingline Loans shall be made only as Base Rate
Loans and may not be made as or Converted into Eurodollar Loans.
Upon demand by the Swingline Lender through the Administrative Agent,
each other Lender having a Commitment under the relevant Revolving Credit
Facility shall purchase from the Swingline Lender, and the Swingline Lender
shall sell and assign to each other such Lender, such other Lender's Revolving
Credit Commitment Percentage of each outstanding Swingline Loan (and related
claims for accrued and unpaid interest thereon) made by such Swingline Lender,
by making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Swingline Lender by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the sum of
(x) the portion of the outstanding principal amount of such
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Swingline Loans to be purchased by such Lender PLUS (y) interest accrued and
unpaid to and as of such date on such portion of the outstanding principal
amount of such Swingline Loans. Each Lender's obligations to make such
payments to the Administrative Agent for account of the Swingline Lender
under this paragraph, and the Swingline Lender's right to receive the same,
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the failure of any
other Lender to make its payment under this paragraph, the financial
condition of any Obligor, the existence of any Default, the failure of any of
the conditions set forth in Section 7 hereof to be satisfied, or the
termination of all or any of the Commitments. Each such payment to the
Swingline Lender shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Lender agrees to purchase its Revolving Credit
Commitment Percentage of such outstanding Swingline Loans on (x) the Business
Day on which demand therefor is made by such Swingline Lender, PROVIDED that
notice of such demand is given not later than 12:00 noon New York City time
on such Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by the Swingline Lender to any other Lender of a portion of the
Swingline Lender's Swingline Loans, the Swingline Lender represents and
warrants to such other Lender that the Swingline Lender is the legal and
beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swingline Loan. If and to the extent that any Lender shall not have so made
the amount of such Swingline Loan available to the Administrative Agent, such
Lender agrees to pay to the Administrative Agent for the account of the
Swingline Lender forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swingline Lender until
the date such amount is paid to the Administrative Agent, at the Federal
Funds Rate.
(f) LIMIT ON EURODOLLAR LOANS. No more than eight separate Interest
Periods in respect of Eurodollar Loans under a Facility from each Lender may be
outstanding at any one time, PROVIDED that prior to the date occurring three
months after the Merger Date, all Eurodollar Loans under any Facility must have
an Interest Period of one month's duration and be coterminous with the Interest
Periods of all other Eurodollar Loans of any Facility, and, to the extent that
prior to such date a Eurodollar Loan would not satisfy such conditions, such
Loan shall be made, or Continued as or Converted into, a Base Rate Loan.
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2.02 BORROWINGS. Each Borrower shall give the Administrative Agent
(or, in the case of Swingline Loans, shall give NatWest) notice of each
borrowing by it hereunder as provided in Section 4.05 hereof. Not later than
1:00 p.m. New York time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to the Administrative Agent, at an account specified by the
Administrative Agent, in immediately available funds, for account of the
relevant Borrower. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, promptly be made
available to the relevant Borrower by depositing the same, in immediately
available funds, in an account of such Borrower designated by such Borrower.
2.03 LETTERS OF CREDIT.
(a) Subject to the terms and conditions of this Agreement, the
Commitments under a Revolving Credit Facility may be utilized, upon the request
of the relevant Revolving Credit Borrower, in addition to the Revolving Credit
Loans to such Borrower under such Facility provided for by Section 2.01 hereof,
by the issuance by the Issuing Banks of letters of credit (collectively,
"LETTERS OF CREDIT") for account of such Borrower or any of its Subsidiaries (as
specified by such Borrower), PROVIDED that in no event shall:
(i) the sum of (x) the aggregate amount of all Letter of Credit
Liabilities under a Revolving Credit Facility, together with the aggregate
principal amount of the Loans (including all Swingline Loans) under such
Facility, PLUS (y) in the case of the Post-Merger Revolving Credit
Facility, the Reserved Commitments, exceed the aggregate amount of the
Commitments under such Facility as in effect from time to time;
(ii) the outstanding aggregate amount of all Letter of Credit
Liabilities under:
(x) a Tender Offer Revolving Credit Facility exceed $5,000,000;
and
(y) the Post-Merger Revolving Credit Facility exceed
$30,000,000; and
(iii) the expiration date of any Letter of Credit extend beyond:
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(x) in the case of any Letter of Credit issued under a Tender
Offer Revolving Credit Facility, March 14, 1997; and
(y) in the case of any Letter of Credit issued under the Post-
Merger Revolving Credit Facility, the earlier of the date five
Business Days prior to the Post-Merger Revolving Credit Commitment
Termination Date and the date twelve months following the issuance of
such Letter of Credit.
In addition, on the Merger Date, all Letters of Credit outstanding on the Merger
Date shall automatically, without any action on the part of any Person, become
Letters of Credit outstanding under the Post-Merger Revolving Credit Facility.
(b) The following additional provisions shall apply to Letters of
Credit:
(i) The relevant Revolving Credit Borrower shall give the
Administrative Agent at least three Business Days' irrevocable prior notice
(effective upon receipt) specifying the Business Day (which shall be no
later than 30 days preceding the Commitment Termination Date under the
relevant Revolving Credit Facility) each Letter of Credit is to be issued,
the Issuing Bank to issue the same and the account party or parties
therefor and describing in reasonable detail the proposed terms of such
Letter of Credit (including the beneficiary thereof) and the nature of the
transactions or obligations proposed to be supported thereby (including
whether such Letter of Credit is to be a commercial letter of credit or a
standby letter of credit). Upon receipt of any such notice, the
Administrative Agent shall advise the relevant Issuing Bank of the contents
thereof.
(ii) On each day during the period commencing with the issuance by an
Issuing Bank of any Letter of Credit and until such Letter of Credit shall
have expired or been terminated, the Commitment of each Lender under the
relevant Facility shall be deemed to be utilized for all purposes of this
Agreement in an amount equal to such Lender's Revolving Credit Commitment
Percentage under such Facility of the then undrawn face amount of such
Letter of Credit. Each Revolving Credit Lender (other than the relevant
Issuing Bank) agrees that, upon the issuance of any Letter of Credit
hereunder, it shall automatically acquire a participation in such Issuing
Bank's liability under such Letter of Credit in
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an amount equal to such Lender's Revolving Credit Commitment Percentage
under the relevant Facility of such liability, and each Revolving Credit
Lender (other than such Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and shall be unconditionally obligated to such Issuing Bank to
pay and discharge when due, its Revolving Credit Commitment Percentage
under such Facility of such Issuing Bank's liability under such Letter
of Credit.
(iii) Upon receipt from the beneficiary of any Letter of Credit of
any demand for payment under such Letter of Credit, the relevant Issuing
Bank shall promptly notify the relevant Borrower (through the
Administrative Agent) of the amount to be paid by such Issuing Bank as a
result of such demand and the date on which payment is to be made by such
Issuing Bank to such beneficiary in respect of such demand.
Notwithstanding the identity of the account party of any Letter of Credit,
the relevant Borrower hereby unconditionally agrees to pay and reimburse
the Administrative Agent for account of such Issuing Bank for the amount of
each demand for payment under such Letter of Credit that is in substantial
compliance with the provisions of such Letter of Credit at or prior to the
date on which payment is to be made by such Issuing Bank to the beneficiary
thereunder, without presentment, demand, protest or other formalities of
any kind.
(iv) Forthwith upon its receipt of a notice referred to in
paragraph (iii) of this Section 2.03(b), the relevant Borrower shall advise
the Administrative Agent whether or not such Borrower intends to borrow
hereunder to finance its obligation to reimburse the relevant Issuing Bank
for the amount of the related demand for payment and, if it does, submit a
notice of such borrowing as provided in Section 4.05 hereof.
(v) Each Revolving Credit Lender (other than the relevant Issuing
Bank) shall pay to the Administrative Agent for account of such Issuing
Bank at an account specified by the Administrative Agent in Dollars and in
immediately available funds, the amount of such Lender's Revolving Credit
Commitment Percentage under the relevant Facility of any payment under a
Letter of Credit under such Facility upon notice by such Issuing Bank
(through the Administrative Agent) to such Revolving Credit Lender
requesting such payment and specifying such amount. Each such Revolving
Credit Lender's obligation to make such payment to the
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Administrative Agent for account of such Issuing Bank under this paragraph
(v), and such Issuing Bank's right to receive the same, shall be absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the failure of any other Revolving Credit
Lender to make its payment under this paragraph (v), the financial
condition of the relevant Borrower (or any other account party or Obligor),
the existence of any Default or the termination of any of the Commitments.
Each such payment to an Issuing Bank shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Revolving Credit
Lender shall default in its obligation to make any such payment to the
Administrative Agent for account of such Issuing Bank, for so long as such
default shall continue the Administrative Agent may at the request of such
Issuing Bank withhold from any payments received by the Administrative
Agent under this Agreement or any Note for account of such Revolving Credit
Lender the amount so in default and, to the extent so withheld, pay the
same to such Issuing Bank in satisfaction of such defaulted obligation.
(vi) Upon the making of each payment by a Revolving Credit Lender to
an Issuing Bank pursuant to paragraph (v) above in respect of any Letter of
Credit, such Lender shall, automatically and without any further action on
the part of the Administrative Agent, such Issuing Bank or such Lender,
acquire (x) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to such Issuing Bank by the relevant
Borrower hereunder and under the Letter of Credit Documents relating to
such Letter of Credit and (y) a participation in a percentage equal to such
Lender's Revolving Credit Commitment Percentage under the relevant Facility
in any interest or other amounts payable by the relevant Borrower hereunder
and under such Letter of Credit Documents in respect of such Reimbursement
Obligation (other than the commissions, charges, costs and expenses payable
to such Issuing Bank pursuant to paragraph (vii) of this Section 2.03(b)).
Upon receipt by an Issuing Bank from or for account of the relevant
Borrower of any payment in respect of any Reimbursement Obligation or any
such interest or other amount (including by way of setoff or application of
proceeds of any collateral security) such Issuing Bank shall promptly pay
to the Administrative Agent for account of each Revolving Credit Lender
entitled thereto, such Revolving Credit Lender's Revolving Credit
Commitment Percentage under the relevant Facility of such payment, each
such payment by such Issuing Bank to be made in the same money and funds in
which
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received by such Issuing Bank. In the event any payment received by
an Issuing Bank and so paid to the relevant Revolving Credit Lenders
hereunder is rescinded or must otherwise be returned by such Issuing Bank,
each Revolving Credit Lender shall, upon the request of such Issuing Bank
(through the Administrative Agent), repay to such Issuing Bank (through the
Administrative Agent) the amount of such payment paid to such Lender, with
interest at the rate specified in paragraph (x) of this Section 2.03(b).
(vii) Each Revolving Credit Borrower shall pay to the Administrative
Agent for account of each Revolving Credit Lender (ratably in accordance
with their respective Revolving Credit Commitment Percentages under the
relevant Revolving Credit Commitment Percentage) a letter of credit fee in
respect of each Letter of Credit issued under such Borrower's Revolving
Credit Facility in an amount equal to the Applicable Letter of Credit
Percentage per annum of the daily average undrawn face amount of such
Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (x) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration date and (y) in
the case of a Letter of Credit that is drawn in full or is otherwise
terminated other than on the stated expiration date of such Letter of
Credit, to but excluding the date such Letter of Credit is drawn in full or
is terminated (such fee to be non-refundable, to be paid in arrears on each
Quarterly Date and on the Commitment Termination Date for the relevant
Facility and to be calculated for any day after giving effect to any
payments made under such Letter of Credit on such day). In addition, each
Revolving Credit Borrower shall pay to the Administrative Agent for account
of each Issuing Bank a fronting fee in respect of each Letter of Credit
issued by such Issuing Bank under such Borrower's Revolving Credit Facility
in an amount equal to 0.25% per annum of the daily average undrawn face
amount of such Letter of Credit for the period from and including the date
of issuance of such Letter of Credit (x) in the case of a Letter of Credit
that expires in accordance with its terms, to and including such expiration
date and (y) in the case of a Letter of Credit that is drawn in full or is
otherwise terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of Credit is drawn
in full or is terminated (such fee to be non-refundable, to be paid in
arrears on each Quarterly Date and on the Commitment Termination Date under
the relevant Facility and to be calculated for any day after giving
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effect to any payments made under such Letter of Credit on such day) plus
all commissions, charges, costs and expenses in the amounts customarily
charged by such Issuing Bank from time to time in like circumstances with
respect to the issuance of each Letter of Credit and drawings and other
transactions relating thereto.
(viii) Promptly following the end of each calendar month, each
Issuing Bank shall deliver (through the Administrative Agent) to each
Revolving Credit Lender and each Revolving Credit Borrower a notice
describing the aggregate amount of all Letters of Credit outstanding under
each Revolving Credit Facility at the end of such month. Upon the request
of any Revolving Credit Lender from time to time, each Issuing Bank shall
deliver any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(ix) The issuance by an Issuing Bank of a Letter of Credit shall, in
addition to the conditions precedent set forth in Section 7 hereof, be
subject to the conditions precedent that (x) such Letter of Credit shall be
in such form, contain such terms and support such transactions as shall be
satisfactory to such Issuing Bank consistent with its then current
practices and procedures with respect to letters of credit of the same type
and (y) the relevant Revolving Credit Borrower shall have executed and
delivered such applications, agreements and other instruments relating to
such Letter of Credit as such Issuing Bank shall have reasonably requested
consistent with its then current practices and procedures with respect to
letters of credit of the same type, PROVIDED that in the event of any
conflict between any such application, agreement or other instrument and
the provisions of this Agreement or any Security Document, the provisions
of this Agreement and the Security Documents shall control.
(x) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (v) or (vi) of this
Section 2.03(b) on the due date therefor, such Lender shall pay interest to
the relevant Issuing Bank (through the Administrative Agent) on such amount
from and including such due date to but excluding the date such payment is
made at a rate per annum equal to the Federal Funds Rate, PROVIDED that if
such Lender shall fail to make such payment to such Issuing Bank within
three Business Days of such due date, then, retroactively to the due date,
such
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Lender shall be obligated to pay interest on such amount at the
Post-Default Rate.
(xi) The issuance by an Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (x) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (y) each Lender
under the relevant Revolving Credit Facility shall have consented thereto.
Each Revolving Credit Borrower hereby indemnifies and holds harmless each
Revolving Credit Lender and the Administrative Agent from and against any and
all claims and damages, losses, liabilities, costs or expenses that such Lender
or the Administrative Agent may incur (or that may be claimed against such
Lender or the Administrative Agent by any Person whatsoever) by reason of or in
connection with the execution and delivery or transfer of or payment or refusal
to pay by an Issuing Bank under any Letter of Credit issued by such Issuing Bank
under such Borrower's Revolving Credit Facility; PROVIDED that such Borrower
shall not be required to indemnify any Lender or the Administrative Agent for
any claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (x) the willful misconduct or gross negligence of
such Issuing Bank in determining whether a request presented under any Letter of
Credit complied with the terms of such Letter of Credit or (y) in the case of
such Issuing Bank, such Lender's failure to pay under any Letter of Credit after
the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this Section 2.03 is intended
to limit the other obligations of any Borrower, any Lender or the Administrative
Agent under this Agreement.
2.04 CHANGES OF COMMITMENTS.
(a) EXPIRATION OF TENDER OFFER COMMITMENTS. The aggregate amount of
the Tender Offer Tranche A Term Loan Commitments, the Tender Offer CALI
Revolving Credit Commitments and the Tender Offer CasTech Revolving Credit
Commitments shall be automatically reduced to zero on the Tender Offer Loan
Commitment Termination Date. Any portion of the Tender Offer Tranche B Term
Loan Commitments not used on the Initial Borrowing
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Date shall be automatically reduced to zero on the close of business on the
Initial Borrowing Date.
(b) EXPIRATION OF POST-MERGER COMMITMENTS.
(i) Any portion of the Post-Merger Tranche A Term Loan Commitments
and the Post-Merger Tranche B Term Loan Commitments not utilized on the
Merger Date shall terminate automatically at the close of business on the
Merger Date.
(ii) The Post-Merger Revolving Credit Commitments shall be
automatically reduced to zero on the Post-Merger Revolving Credit
Commitment Termination Date.
(c) REDUCTIONS OF COMMITMENTS. Each Borrower shall have the right at
any time or from time to time (i) to reduce the aggregate unused amount of the
Commitments under its Facilities (for which purpose use of such Commitments
shall be deemed to include (in the case of a Revolving Credit Facility) the
aggregate amount of Swingline Loans and Letter of Credit Liabilities under such
Facility) and (ii) in the case of any Revolving Credit Borrower, so long as no
Loans (including all Swingline Loans) or Letter of Credit Liabilities are
outstanding under its Revolving Credit Facility, to terminate the Commitments
thereunder; PROVIDED that (x) the relevant Borrower shall give notice of each
such termination or reduction as provided in Section 4.05 hereof and (y) each
partial reduction shall be in an aggregate amount at least equal to $5,000,000
(or a larger multiple of $1,000,000).
(d) GENERAL. The Commitments under any Facility once terminated or
reduced may not be reinstated.
2.05 CERTAIN FEES.
(a) The Revolving Credit Borrowers shall pay to the Administrative
Agent for account of each Lender a fee (a "REVOLVING CREDIT NON-UTILIZATION
FEE") on the daily average unused amount of such Lender's Commitment under the
relevant Revolving Credit Facility (for which purpose (i) the Reserved
Commitments shall be deemed not to constitute usage of such Lender's Post-Merger
Revolving Credit Commitment and (ii) the aggregate amount of any Letter of
Credit Liabilities under such Facility shall be deemed to be a pro rata (based
on the Commitments thereunder) use of each Lender's Commitment thereunder), for
the period from and including the Signing Date (in the case of the Tender Offer
Revolving Credit Facilities) or the Merger Date (in the case of the Post-Merger
Revolving Credit
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Facilities) to but not including the earlier of the date such Commitment is
terminated and the relevant Commitment Termination Date, at a rate per annum
equal to the Applicable Non-Utilization Fee Percentage in effect from time to
time.
(b) The Term Loan Borrower shall pay to the Administrative Agent for
account of each Lender a fee (a "TERM LOAN NON-UTILIZATION FEE" and,
collectively with the Revolving Credit Non-Utilization Fee, the "NON-UTILIZATION
FEES") on the daily average unused amount of such Lender's Tender Offer
Tranche A Term Loan Commitment and on the daily unused amount of such Lender's
Tender Offer Tranche B Term Loan Commitment for the period from and including
the Signing Date to but not including the earlier of the date such Commitment is
terminated and the Tender Offer Loan Commitment Termination Date, at a rate per
annum equal to the Applicable Non-Utilization Fee Percentage in effect from time
to time.
(c) Accrued Non-Utilization Fee shall be payable on each Quarterly
Date and on the earlier of the date the relevant Commitments are terminated and
the relevant Commitment Termination Date.
(d) If any Tender Offer Loans are outstanding on the date that is 90
days after the Tender Offer Closing Date, the Parent shall, on such date (or, if
such day is not a Business Day, on the next succeeding Business Day), pay to the
Administrative Agent for account of each Lender a fee in an amount equal to
0.25% of the aggregate outstanding Post-Merger Commitments of such Lender.
2.06 LENDING OFFICES. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.07 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender. The amounts
payable by each Borrower at any time hereunder and under the Notes to each
Lender shall be a separate and independent debt and each Lender shall be
entitled to protect and enforce its rights arising out
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of this Agreement and the Notes, and it shall not be necessary for any other
Lender or the Administrative Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
2.08 NOTES.
(a) PROMISSORY NOTES. The Loans made by each Lender under each
Facility shall be evidenced by a single promissory note of each relevant
Borrower substantially in the form of the Exhibit hereto identified below
opposite the name of such Facility:
Facility Exhibit
-------- -------
Tender Offer Tranche A Term Loan Facility Exhibit A-1
Tender Offer Tranche B Term Loan Facility Exhibit A-2
Tender Offer CALI Revolving Credit Facility Exhibit A-3
Tender Offer CasTech Revolving Credit Facility Exhibit A-4
Post-Merger Tranche A Term Loan Facility Exhibit A-5
Post-Merger Tranche B Term Loan Facility Exhibit A-6
Post-Merger Revolving Credit Facility Exhibit A-7
Swingline Facility (Tender Offer) Exhibit A-8
Swingline Facility (Post-Merger) Exhibit A-9
Each Tender Offer Note shall be dated the Tender Offer Closing Date, payable to
such Lender in a principal amount equal to the amount of its Commitment under
the relevant Tender Offer Facility as in effect on the Tender Offer Closing Date
and otherwise duly completed. The Swingline Note evidencing Tender Offer
Swingline Loans made by NatWest shall be dated the Tender Offer Closing Date,
payable to NatWest in a principal amount equal to $5,000,000 and otherwise duly
completed. Each Post-Merger Note shall be dated the Merger Date, payable to
such Lender in a principal amount equal to the amount of its Commitment under
the relevant Post-Merger Facility as in effect on the Merger Date and otherwise
duly completed. The Swingline Note evidencing the Post-Merger Swingline Loans
made by NatWest shall be dated the Merger Date, payable to NatWest in a
principal amount equal to $5,000,000 and otherwise duly completed.
(b) RECORDATION OF LOANS, ETC. The date, amount, Type, interest rate
and duration of Interest Period (if applicable) of each Loan under each Facility
made by each Lender to the relevant Borrower, and each payment made on account
of the principal thereof, shall be recorded by such Lender on its books and,
prior to any transfer of the Note evidencing the Loans under such Facility held
by it, endorsed by such Lender on the schedule
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attached to such Note or any continuation thereof; PROVIDED that the failure
of such Lender to make any such recordation or endorsement shall not affect
the obligations of the relevant Borrower to make a payment when due of any
amount owing hereunder or under such Note in respect of such Loans.
(c) SUBSTITUTION, EXCHANGE, SUBDIVISION, ETC. No Lender shall be
entitled to have its Notes substituted or exchanged for any reason, or
subdivided for promissory notes of lesser denominations, except in connection
with a permitted assignment of all or any portion of such Lender's relevant
Commitments, Loans and Notes pursuant to Section 12.06 hereof (and, if requested
by any Lender, each Borrower agrees to so exchange any Note).
2.09 OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOANS.
Subject to Section 4.04 hereof, each Borrower shall have the right to prepay
Loans, to Convert Loans of one Type under one Post-Merger Facility into Loans of
another Type under the same Facility or to Continue Loans of one Type under one
Post-Merger Facility as Loans of the same Type under the same Facility, at any
time or from time to time, PROVIDED that:
(a) such Borrower shall give the Administrative Agent (or, in the
case of Swingline Loans, shall give NatWest) notice of each such
prepayment, Conversion or Continuation as provided in Section 4.05 hereof
(and, upon the date specified in any such notice of prepayment, the amount
to be prepaid shall become due and payable hereunder);
(b) any such prepayment or Conversion of a Eurodollar Loan other than
on the last day of an Interest Period therefor shall be accompanied by, and
subject to, the payment of any amount payable under Section 5.05 hereof in
respect of such prepayment or Conversion;
(c) prepayments of Loans under any Post-Merger Term Loan Facility
shall be applied FIRST in the direct order of maturity of the installments
of such Loans falling due within one year from the date of prepayment and
THEN ratably to the remaining installments of such Loans; and
(d) any Conversion or Continuation of Eurodollar Loans shall be
subject to the provisions of Section 2.01(f) hereof.
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Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10 hereof, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of the Borrowers to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
2.10 MANDATORY PREPAYMENTS AND REDUCTIONS OF COMMITMENTS.
(a) BORROWING BASE. CALI shall from time to time prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below) under the Tender Offer CALI Revolving Credit Facility, and
the Post-Merger Revolving Credit Borrowers shall from time to time prepay the
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below) under the Post-Merger Revolving Credit Facility, in each
case in such amounts as shall be necessary so that at all times the aggregate
outstanding amount of the Loans (including all Swingline Loans) under the
relevant Revolving Credit Facility together with the outstanding Letter of
Credit Liabilities under such Facility shall not exceed the Borrowing Base for
such Facility, such amount to be applied, FIRST, to Loans outstanding under such
Facility and, SECOND, as cover for Letter of Credit Liabilities outstanding
under such Facility.
(b) SALE OF ASSETS. Without limiting the obligation of the Borrowers
to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to
any Disposition not otherwise permitted hereunder, no later than five Business
Days after each Recapture Date the Parent shall deliver to the Administrative
Agent a certificate of a Responsible Officer of the Parent in form and detail
reasonably satisfactory to the Administrative Agent of the amount of Net
Available Proceeds for the Recapture Period ending on such Recapture Date and,
on the date five Business Days after such Recapture Date the Borrowers shall
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (k) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount equal to 100% (or, from and after
the General Trigger Date, 75%) of the Net Available Proceeds of Dispositions for
such Recapture Period, such prepayment and reduction to be effected in each case
in the manner, order and to the extent specified in paragraph (j) below.
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Notwithstanding the foregoing, the Borrowers shall not be required to
make a prepayment pursuant to this paragraph (b) with respect to:
(1) the Net Available Proceeds of any Disposition of CasTech Shares
effected at any time prior to the Merger Date, PROVIDED that: (I) except
as otherwise agreed by the Majority Lenders, such Net Available Proceeds
shall be deposited in, and thereafter maintained in, the Commonwealth
Collateral Account (and such Net Available Proceeds shall be permitted to
be invested solely in Permitted Investments with maturities not in excess
of 30 days) and (II) the Borrowers may, in their sole discretion, elect to
apply such Net Available Proceeds to the prepayment of the Loans pursuant
to Section 2.09 hereof; and
(2) the Net Available Proceeds of any other Disposition in the event
that the Borrowers advise the Administrative Agent at the time the Net
Available Proceeds from such Disposition are received that they intend to
reinvest such Net Available Proceeds in replacement assets pursuant to a
transaction permitted hereunder, so long as:
(x) such Net Available Proceeds are held by the Administrative
Agent in one of the Collateral Accounts pending such reinvestment, in
which event the Administrative Agent need not release such Net
Available Proceeds except upon presentation of evidence satisfactory
to it that such Net Available Proceeds are to be so reinvested in
compliance with the provisions of this Agreement,
(y) the Net Available Proceeds from any Disposition are in fact
so reinvested within twelve months of such Disposition (it being
understood that, in the event Net Available Proceeds from more than
one Disposition are paid into one of the Collateral Accounts as
provided in clause (x) above, such Net Available Proceeds shall be
deemed to be released in the same order in which such Dispositions
occurred and, accordingly, any such Net Available Proceeds so held for
more than twelve months shall be forthwith applied to the prepayment
of Loans and reductions of Commitments as provided above), and
(z) the aggregate amount of Net Available Proceeds (together
with investment earnings thereon) so held at any time by the
Administrative Agent pending
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reinvestment as contemplated by this sentence shall not at any time
exceed $10,000,000 or such greater amount as the Majority Lenders
may otherwise agree.
As contemplated by Section 4.01 of each Pledge and Security Agreement, nothing
in this Section 2.10(b) shall be deemed to obligate the Administrative Agent to
release any of such proceeds from any Collateral Account to the Borrowers upon
the occurrence and during the continuance of any Event of Default.
(c) CASUALTY EVENTS. Upon the date twelve months following the
receipt by the Parent or any of its Subsidiaries (the date of such receipt being
the "RECEIPT DATE") of the proceeds of insurance, condemnation award or other
compensation in respect of any Casualty Event affecting any Property of the
Parent or any of its Subsidiaries, the Parent shall cause the Borrowers to
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (k) below), and the Commitments shall be subject to
automatic reduction, in an aggregate amount, if any, equal to 100% (or, from and
after the General Trigger Date, 75%) of the Net Available Proceeds of such
Casualty Event to the extent that all or substantially all of such Net Available
Proceeds have not theretofore been applied to the repair or replacement of such
Property, such prepayment and reduction to be effected in each case in the
manner and to the extent specified in paragraph (j) below. Notwithstanding the
foregoing:
(i) the Parent shall cause such prepayment and reduction to occur
(x) upon the date 30 days after the Receipt Date (if the Parent or such
Subsidiary shall not theretofore have determined to repair or replace the
Property affected by such Casualty Event) and (y) upon the date 90 days
after the Receipt Date (if the Parent or such Subsidiary shall not
theretofore have commenced the repair or replacement of such Property); and
(ii) in the event that a Casualty Event shall occur with respect to
Property covered by any Mortgage, the Parent shall cause the Borrowers to
prepay the Loans (and/or provide cover for Letter of Credit Liabilities as
specified in paragraph (k) below), and the Commitments shall be subject to
automatic reduction, on the dates, and in the amounts of the required
prepayments, specified in such Mortgage.
Nothing in this paragraph (c) shall be deemed to limit any obligation of the
Parent or any of its Subsidiaries pursuant to
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any of the Security Documents to remit to a collateral or similar account
(including, without limitation, the Collateral Accounts) maintained by the
Administrative Agent pursuant to any of the Security Documents the proceeds
of insurance, condemnation award or other compensation received in respect of
any Casualty Event.
(d) DEBT ISSUANCE. Upon any Debt Issuance occurring prior to the
General Trigger Date, the Parent shall cause the Borrowers to prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 100% of the Net Available Proceeds
thereof, such prepayment and reduction to be effected in each case in the manner
and to the extent specified in paragraph (j) below.
(e) EQUITY ISSUANCE. Upon any Equity Issuance occurring prior to the
General Trigger Date, the Parent shall cause the Borrowers to prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 75% of the Net Available Proceeds
thereof, such prepayment and reduction to be effected in each case in the manner
and to the extent specified in paragraph (j) below.
(f) EXCESS CASH FLOW. If any Tranche B Term Loan has been
outstanding during any day of any fiscal year of the Parent ending after the
date hereof, then, not later than the date 45 days after the end of each such
fiscal year of the Parent (commencing with the fiscal year ending December 31,
1997), the Parent shall cause the Borrowers to prepay the Loans (and/or provide
cover for Letter of Credit Liabilities as specified in paragraph (k) below), and
the Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 75% (or, after at least 50% of the aggregate unpaid principal amount of
the Term Loans outstanding on the Merger Date shall have been repaid, 50%) of
Excess Cash Flow for such fiscal year, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in
paragraph (j) below; PROVIDED that, from and after the Excess Cash Flow Trigger
Date, no further prepayments (or requirement to provide cover for Letter of
Credit Liabilities) or Commitment reductions shall be required under this
paragraph (f).
(g) CHANGE OF CONTROL. If any Change of Control shall occur, then,
concurrently with such Change of Control, the
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Borrowers shall prepay the Loans in full and the Commitments shall be
automatically reduced to zero.
(h) RECEIVABLES SALES. Without limiting the obligation of the
Borrowers to obtain the consent of the Majority Lenders pursuant to Section 9.05
hereof to any Receivables Sale not otherwise permitted hereunder, upon any
Receivables Sale the Parent shall cause the Borrowers to prepay the Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below) in an aggregate amount equal to 100% of the Net Available
Proceeds thereof (as to each such Receivables Sale, the "PREPAYMENT AMOUNT").
Each such prepayment pursuant to this Section 2.10(h) shall be applied FIRST to
the prepayment of outstanding Swingline Loans, SECOND to the prepayment of
Revolving Credit Loans, THIRD to provide cover for Letter of Credit Liabilities
as specified in paragraph (k) below and FOURTH to the prepayment of outstanding
Term Loans.
(i) SENIOR SUBORDINATED DEBT. Upon the issuance of Senior
Subordinated Debt, the Term Loan Borrowers shall prepay the Tranche B Term Loans
(if any) in full and the Tranche B Term Loan Commitments shall be automatically
reduced to zero.
(j) APPLICATION. Prepayments and reductions of Commitments described
in the above paragraphs of this Section 2.10 (other than in paragraphs (a), (h)
and (i) above) shall be effected as follows:
(i) if such prepayment and reduction is to be effected prior to
the Merger Date:
(x) if the Net Available Proceeds to be applied are Net
Available Proceeds of Dispositions, Debt Issuances or Equity Issuances
by, or of Casualty Events relating to Property of, CasTech or any of
its Subsidiaries, then the Tender Offer CasTech Revolving Credit
Commitments shall be automatically reduced in an amount equal the
amount of the prepayment specified in such paragraphs (and to the
extent that, after giving effect to such reduction, the aggregate
principal amount of Loans, together with the aggregate amount of all
Letter of Credit Liabilities, under the Tender Offer CasTech Revolving
Credit Facility would exceed the Commitments under such Facility,
CasTech shall, first, prepay Loans and, second, provide cover for
Letter of Credit Liabilities as specified in paragraph (k) below,
under such Facility in an aggregate amount equal to such excess); and
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(y) in all other cases:
(I) FIRST, the amount of the prepayment specified in such
paragraphs shall be applied to the Tender Offer Term Loans then
outstanding (pro rata between each Tender Offer Term Loan Facility)
and, after giving effect to such prepayment, any remaining unutilized
Tender Offer Term Loan Commitments shall be automatically reduced in
an amount equal to the balance of the required prepayment (pro rata
between each Tender Offer Term Loan Facility); and
(II) SECOND, the Tender Offer CALI Revolving Credit Commitments
shall be automatically reduced in an amount equal to any excess over
the amount referred to in the foregoing clause (I) (and to the extent
that, after giving effect to such reduction, the aggregate principal
amount of Loans (including all Swingline Loans), together with the
aggregate amount of all Letter of Credit Liabilities, under the Tender
Offer CALI Revolving Credit Facility would exceed the Commitments
under such Facility, CALI shall, first, prepay the Swingline Loans,
second, prepay the other Loans and, third, provide cover for Letter of
Credit Liabilities as specified in paragraph (k) below, under such
Facility in an aggregate amount equal to such excess); and
(ii) if such prepayment and reduction is to be effected on or after
the Merger Date:
(x) FIRST, the amount of the prepayment specified in such
paragraphs shall be applied to the Post-Merger Term Loans then
outstanding (pro rata between each Post-Merger Term Loan Facility and,
as to each Post-Merger Term Loan Facility, to the installments thereof
in inverse order to maturity); and
(y) SECOND, the Post-Merger Revolving Credit Commitments shall
be automatically reduced in an amount equal to any excess over the
amount referred to in the foregoing clause (x) (and to the extent
that, after giving effect to such reduction, the sum of (I) the
aggregate principal amount of Loans (including all Swingline Loans),
together with the aggregate amount of all Letter of Credit
Liabilities, under the Post-Merger Revolving Credit Facility PLUS (II)
the aggregate amount of the Reserved Commitments would exceed the
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Commitments under such Facility, the Revolving Credit Borrowers shall,
first, prepay Swingline Loans, second, prepay the other Loans, and,
third, provide cover for Letter of Credit Liabilities as specified in
paragraph (k) below, under such Facility in an aggregate amount equal
to such excess).
(k) COVER FOR LETTER OF CREDIT LIABILITIES. In the event that a
Revolving Credit Borrower shall be required pursuant to this Section 2.10 to
provide cover for Letter of Credit Liabilities under its Revolving Credit
Facility, such Borrower shall effect the same by paying to the Administrative
Agent immediately available funds in an amount equal to the required amount,
which funds shall be retained by the Administrative Agent in the relevant
Collateral Account (as provided therein as collateral security in the first
instance for such Letter of Credit Liabilities) until such time as the Letters
of Credit issued under such Revolving Credit Facility shall have been terminated
and all of the Letter of Credit Liabilities thereunder paid in full.
(l) CERTAIN MATTERS RELATING TO THE POST-MERGER FACILITIES. Each
prepayment and reduction of Commitments pursuant to Sections 2.10(i) and
2.10(j)(i) hereof that occurs prior to the Merger Date shall also be applied to
the Post-Merger Facilities (including, without limitation, the Commitments
thereunder) as if such prepayment and reduction occurred on the Merger Date.
2.11 RESERVED COMMITMENTS, ETC.
(a) If the Borrowers shall at any time prepay Post-Merger Revolving
Credit Loans with Net Available Proceeds of any Receivables Sale in accordance
with Section 2.10(h) hereof, then an amount of Post-Merger Revolving Credit
Commitments equal to the amount of such prepayment shall be reserved and shall
not, except as provided in paragraph (b) below, be available for borrowings or
reborrowings of Post-Merger Revolving Credit Loans under Section 2.01(d) hereof.
The Post-Merger Revolving Credit Commitments at any time so reserved are herein
called the "RESERVED COMMITMENTS"; the Post-Merger Revolving Credit Commitments
not constituting Reserved Commitments are herein called the "AVAILABLE
COMMITMENTS".
(b) The Parent may from time to time deliver to the Administrative
Agent a request (an "AVAILABILITY INCREASE REQUEST") to reduce the aggregate
amount of the Reserved Commitments (and, thereby, to increase the aggregate
amount of
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the Available Commitments). Each Availability Increase Request shall state
the aggregate amount of the proposed reduction in the Reserved Commitments
and the date on which such reduction is to become effective (which date shall
be a Business Day no earlier than the date three Business Days following the
delivery of such Availability Increase Request), and shall be accompanied by
a certificate of a Responsible Officer of the Parent in form and detail
satisfactory to the Administrative Agent demonstrating that the amount of the
Reserved Commitments (after giving effect to the reduction thereof requested
in such Availability Increase Request) shall be not less than the aggregate
amount then outstanding under all Permitted Receivable Financings. On the
effective date specified in each Availability Increase Request, the amount of
the Reserved Commitments shall be reduced automatically by the amount
specified in such Availability Increase Request.
(c) Notwithstanding anything in this Agreement to the contrary,
reductions of the Post-Merger Revolving Credit Commitments hereunder (including,
without limitation, reductions under Sections 2.04(c) and 2.10 hereof) shall be
applied FIRST to the Reserved Commitments and THEN to the Available Commitments.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) TENDER OFFER LOANS.
(i) TRANCHE A TERM LOANS. CALI hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Lender's Tender Offer Tranche A Term Loans, and
each such Loan shall mature, on the Tender Offer Loan Maturity Date.
(ii) TRANCHE B TERM LOANS. CALI hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Lender's Tender Offer Tranche B Term Loans, and
each such Loan shall mature, on the Tender Offer Loan Maturity Date.
(iii) CALI REVOLVING CREDIT FACILITY. CALI hereby promises to pay to
the Administrative Agent for account of each Lender the entire outstanding
principal amount of such Lender's Tender Offer CALI Revolving Credit Loans,
and each
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such Loan shall mature, on the Tender Offer Loan Maturity Date.
(iv) CASTECH REVOLVING CREDIT FACILITY. CasTech hereby promises to
pay to the Administrative Agent for account of each Lender the entire
outstanding principal amount of such Lender's Tender Offer CasTech
Revolving Credit Loans, and each such Loan shall mature, on the Tender
Offer Loan Maturity Date.
(v) SWINGLINE LOANS. CALI hereby promises to pay to the
Administrative Agent for account of NatWest (or each other Lender holding a
Tender Offer Swingline Loan) the entire outstanding principal amount of the
Tender Offer Swingline Loans, and each such Loan shall mature, on the
Tender Offer Loan Maturity Date.
(b) POST-MERGER LOANS.
(i) TRANCHE A TERM LOANS. CasTech hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Lender's Post-Merger Tranche A Term Loans in 20
installments payable on the Principal Payment Dates as follows:
Principal Payment Date
Falling on or Nearest To Amount of Installment
------------------------- ---------------------
December 1, 1996 $1,250,000.00
March 1, 1997 $1,250,000.00
June 1, 1997 $1,250,000.00
September 1, 1997 $1,250,000.00
December 1, 1997 $2,500,000.00
March 1, 1998 $2,500,000.00
June 1, 1998 $2,500,000.00
September 1, 1998 $2,500,000.00
December 1, 1998 $5,000,000.00
March 1, 1999 $5,000,000.00
June 1, 1999 $5,000,000.00
September 1, 1999 $5,000,000.00
December 1, 1999 $7,500,000.00
March 1, 2000 $7,500,000.00
June 1, 2000 $7,500,000.00
September 1, 2000 $7,500,000.00
December 1, 2000 $8,750,000.00
March 1, 2001 $8,750,000.00
June 1, 2001 $8,750,000.00
September 1, 2001 $8,750,000.00
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If CasTech does not borrow the full amount of the aggregate Post-Merger
Tranche A Term Loan Commitments on the Merger Date, the shortfall shall be
applied to reduce the foregoing installments ratably.
(ii) TRANCHE B TERM LOANS. CasTech hereby promises to pay to the
Administrative Agent for account of each Lender the entire outstanding
principal amount of such Lender's Post-Merger Tranche B Term Loans in 28
installments payable on the Principal Payment Dates as follows:
Principal Payment Date
Falling on or Nearest To Amount of Installment
------------------------ ---------------------
December 1, 1996 $ 250,000.00
March 1, 1997 $ 250,000.00
June 1, 1997 $ 250,000.00
September 1, 1997 $ 250,000.00
December 1, 1997 $ 250,000.00
March 1, 1998 $ 250,000.00
June 1, 1998 $ 250,000.00
September 1, 1998 $ 250,000.00
December 1, 1998 $ 250,000.00
March 1, 1999 $ 250,000.00
June 1, 1999 $ 250,000.00
September 1, 1999 $ 250,000.00
December 1, 1999 $ 250,000.00
March 1, 2000 $ 250,000.00
June 1, 2000 $ 250,000.00
September 1, 2000 $ 250,000.00
December 1, 2000 $ 250,000.00
March 1, 2001 $ 250,000.00
June 1, 2001 $ 250,000.00
September 1, 2001 $ 250,000.00
December 1, 2001 $ 8,750,000.00
March 1, 2002 $ 8,750,000.00
June 1, 2002 $ 8,750,000.00
September 1, 2002 $ 8,750,000.00
December 1, 2002 $15,000,000.00
March 1, 2003 $15,000,000.00
June 1, 2003 $15,000,000.00
September 1, 2003 $15,000,000.00
If CasTech does not borrow the full amount of the aggregate Post-Merger
Tranche B Term Loan Commitments on the Merger Date, the shortfall shall be
applied to reduce the foregoing installments ratably.
CREDIT AGREEMENT
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(iii) REVOLVING CREDIT FACILITY. Each Revolving Credit Borrower
hereby jointly and severally promises to pay to the Administrative Agent
for account of each Lender the entire outstanding principal amount of such
Lender's Post-Merger Revolving Credit Loans, and each such Loan shall
mature, on the Post-Merger Revolving Credit Commitment Termination Date.
(iv) SWINGLINE LOANS. The Post-Merger Revolving Credit Borrowers
hereby jointly and severally promise to pay to the Administrative Agent for
account of NatWest (or each other Lender holding a Post-Merger Swingline
Loan) the entire outstanding principal amount of the Post-Merger Swingline
Loans, and each such Loan shall mature, on the Post-Merger Revolving Credit
Commitment Termination Date.
3.02 INTEREST. Each Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan (including each Swingline Loan) made by such Lender to such
Borrower for the period from and including the date of such Loan to but
excluding the date such Loan shall be paid in full, at the following rates per
annum:
(a) during such periods as such Loan is a Base Rate Loan, the Base
Rate (as in effect from time to time) PLUS the Applicable Margin and
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period PLUS the Applicable Margin.
Notwithstanding the foregoing, each Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate:
(x) on any principal of any Loan made by such Lender to such
Borrower, on any Reimbursement Obligation of such Borrower held by such
Lender and on any other amount payable by such Borrower hereunder or under
the Notes held by such Lender to or for account of such Lender, that shall
not be paid in full when due (whether at stated maturity, by acceleration,
by mandatory prepayment or otherwise), for the period from and including
the due date thereof to but excluding the date the same is paid in full;
and
(y) during any Specified Event of Default Period.
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Accrued interest on each Loan shall be payable (i) in the case of a Base Rate
Loan and a Swingline Loan, quarterly on the Quarterly Dates, (ii) in the case of
a Eurodollar Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals following
the first day of such Interest Period, and (iii) in the case of any Loan (other
than a Swingline Loan), upon the payment or prepayment thereof or the Conversion
of such Loan to a Loan of another Type (but only on the principal amount so
paid, prepaid or Converted), except that interest payable at the Post-Default
Rate shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall give notice thereof to the Lenders to which such
interest is payable and to the Borrowers.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Borrowers under this Agreement and the Notes, and, except to the extent
otherwise provided therein, all payments to be made by the Obligors under any
other Credit Document, shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to the Administrative Agent at an
account specified by the Administrative Agent, not later than 1:00 p.m. New York
time on the date on which such payment shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Any Lender for whose account any such payment by a Borrower is to
be made may (but shall not be obligated to) debit the amount of any such payment
that is not made by such time to any ordinary deposit account of such Borrower
with such Lender (with notice to such Borrower and the Administrative Agent),
PROVIDED that such Lender's failure to give such notice shall not affect the
validity thereof.
(c) Each Borrower shall, at the time of making each payment under
this Agreement or any Note for account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by such
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Borrower hereunder to which such payment is to be applied (and in the event
that such Borrower fails to so specify, or if an Event of Default has
occurred and is continuing, the Administrative Agent may distribute such
payment to the Lenders for application in such manner as it or the Majority
Lenders, subject to Section 4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of
Section 2.03(b)(v) hereof, each payment received by the Administrative Agent
under this Agreement or any Note for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately available funds,
for account of such Lender's Applicable Lending Office for the Loan or other
obligation in respect of which such payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) each borrowing of Loans under a particular Facility from the
Lenders under Section 2.01 hereof shall be made from the relevant Lenders, each
payment of Non-Utilization Fee under Section 2.05 hereof in respect of
Commitments under a particular Facility shall be made for account of the
relevant Lenders, and each termination or reduction of the amount of the
Commitments under a particular Facility under Section 2.04 hereof shall be
applied to the respective Commitments under such Facility of the relevant
Lenders, pro rata according to the amounts of their respective Commitments under
such Facility; (b) except as otherwise provided in Section 5.04 hereof,
Eurodollar Loans under any Facility having the same Interest Period shall be
allocated pro rata among the relevant Lenders according to the amounts of their
respective Commitments under such Facility (in the case of the making of Loans)
or their respective Loans under such Facility (in the case of Conversions and
Continuations of Loans); (c) each payment or prepayment of principal of Loans
under a particular Facility by a Borrower shall be made for account of the
relevant Lenders pro rata in accordance with the respective unpaid principal
amounts of the Loans under such Facility held by them; and (d) each payment of
interest on Loans under a particular Facility by the relevant Borrower shall be
made for account of the relevant Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Lenders.
Notwithstanding the foregoing, borrowings, payments and prepayments of Swingline
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Loans shall be made without regard to the foregoing provisions of this
Section 4.02.
4.03 COMPUTATIONS. Interest on Loans, Non-Utilization Fees and
letter of credit fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but, except as otherwise provided
in Section 2.03(b)(vii) hereof excluding the last day) occurring in the period
for which payable, and interest on Base Rate Loans and Reimbursement Obligations
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the Base Rate is calculated by reference to the Federal Funds
Rate, interest on Base Rate Loans and Reimbursement Obligations shall be
computed on the basis of a year of 360 days and actual days elapsed.
4.04 MINIMUM AMOUNTS. Except for mandatory prepayments made pursuant
to Section 2.10 hereof and Conversions or prepayments made pursuant to
Section 5.04 hereof, each borrowing, Conversion and partial prepayment of
principal of Loans (other than Swingline Loans) shall be in an aggregate amount
at least equal to $5,000,000 or a larger multiple of $1,000,000 (borrowings,
Conversions or prepayments of or into Loans of different Types or, in the case
of Eurodollar Loans, having different Interest Periods at the same time
hereunder to be deemed separate borrowings, Conversions and prepayments for
purposes of the foregoing, one for each Type or Interest Period), PROVIDED that
the aggregate principal amount of Eurodollar Loans having the same Interest
Period shall be in an amount at least equal to $5,000,000 or a larger multiple
of $1,000,000 and, if any Eurodollar Loans would otherwise be in a lesser
principal amount for any period, such Loans shall be borrowed as Base Rate Loans
during such period. Each borrowing of Swingline Loans shall be in an aggregate
amount at least equal to $100,000 or in multiples of $50,000 in excess thereof
and each partial prepayment of Swingline Loans shall be in an aggregate amount
at least equal to $50,000 or in multiples of $50,000 in excess thereof.
4.05 CERTAIN NOTICES. Notices by a Borrower to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans, of Types of Loans
and of the duration of Interest Periods shall be irrevocable and shall be
effective only if received by the Administrative Agent not later than 12:00 noon
New York time on the number of Business Days
CREDIT AGREEMENT
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prior to the date of the relevant termination, reduction, borrowing,
Conversion, Continuation or prepayment or the first day of such Interest
Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment
of Swingline Loans same day
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans
(other than Swingline Loans) 1
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Each such notice of termination or reduction shall specify the amount and the
Facility under which the Commitments are to be terminated or reduced. Each such
notice of borrowing, Conversion, Continuation or optional prepayment shall
specify the Facility of Loans to be borrowed, Converted, Continued or prepaid
and the amount (subject to Section 4.04 hereof) and Type of each Loan to be
borrowed, Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that a
Borrower fails to select the Type of Loan, or the duration of any Interest
Period for any Eurodollar Loan, within the time period and otherwise as provided
in this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified by a Lender or a Borrower (the
"PAYOR") prior to the date on which the
CREDIT AGREEMENT
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Payor is to make payment to the Administrative Agent of (in the case of a
Lender) the proceeds of a Loan required to be made by such Lender hereunder
or (in the case of a Borrower) a payment to the Administrative Agent for
account of one or more of the Lenders hereunder (such payment being herein
called the "REQUIRED PAYMENT"), which notice shall be effective upon receipt,
that the Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall
not be required to), make the amount thereof available to the intended
recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such
payment shall, on demand, repay to the Administrative Agent the amount so
made available together with interest thereon in respect of each day during
the period commencing on the date (the "ADVANCE DATE") such amount was so
made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to the Federal Funds
Rate for such day and, if such recipient(s) shall fail promptly to make such
payment, the Administrative Agent shall be entitled to recover such amount,
on demand, from the Payor, together with interest as aforesaid, PROVIDED that
if neither the recipient(s) nor the Payor shall return the Required Payment
to the Administrative Agent within three Business Days of the Advance Date,
then, retroactively to the Advance Date, the Payor and the recipient(s) shall
each be obligated to pay interest on the Required Payment as follows:
(i) if the Required Payment shall represent a payment to be made
by a Borrower to the Lenders, such Borrower and the recipient(s) shall each
be obligated retroactively to the Advance Date to pay interest in respect
of the Required Payment at the Post-Default Rate (without duplication of
the obligation of the Parent under Section 3.02 hereof to pay interest on
the Required Payment at the Post-Default Rate), it being understood that
the return by the recipient(s) of the Required Payment to the
Administrative Agent shall not limit such obligation of such Borrower under
said Section 3.02 to pay interest at the Post-Default Rate in respect of
the Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan to
be made by the Lenders to a Borrower, the Payor and such Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to whichever of the rates
specified in Section 3.02 hereof is applicable to the Type
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of such Loan, it being understood that the return by a Borrower of the
Required Payment to the Administrative Agent shall not limit any claim
such Borrower may have against the Payor in respect of such Required
Payment.
4.07 SHARING OF PAYMENTS, ETC.
(a) Each Obligor agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Obligor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness are then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, PROVIDED that such
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan under any Facility or Letter of Credit
Liability owing to it or payment of any other amount under this Agreement or any
other Credit Document through the exercise of any right of set-off, banker's
lien or counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of such payment, such
Lender shall have received a greater percentage of the principal of or interest
on the Loans under such Facility or Letter of Credit Liabilities or such other
amounts then due hereunder or thereunder by such Obligor to such Lender than the
percentage received by any other Lender, it shall promptly purchase from such
other Lenders participations in (or, if and to the extent specified by such
Lender, direct interests in) the Loans under such Facility or Letter of Credit
Liabilities or such other amounts, respectively, owing to such other Lenders (or
in interest due thereon, as the case may be) in such amounts, and make such
other adjustments from time to time as shall be equitable, to the end that all
the Lenders shall share the benefit of such excess payment (net of any expenses
that may be incurred by such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid principal of and/or interest on
the Loans under such Facility or Letter of Credit Liabilities or such other
amounts, respectively, owing to each of the Lenders. To such end all the
Lenders shall make
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appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS.
(a) Each Borrower shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be necessary to compensate such
Lender for any costs that such Lender determines are attributable to its making
or maintaining of any Eurodollar Loans or its obligation to make any Eurodollar
Loans hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such Loans or such obligation, resulting from any
Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) to any tax, duty or other charge in respect of such
Loans or its Notes or changes the basis of taxation of any amounts payable
to such Lender under this Agreement or its Notes in respect of any of such
Loans (excluding changes in the rate of tax on the overall net income of
such Lender or of such Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office); or
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(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or its
Notes (or any of such extensions of credit or liabilities) or its
Commitments.
If any Lender requests compensation from a Borrower under this Section 5.01(a),
such Borrower may, by notice to such Lender through the Parent (with a copy to
the Administrative Agent), suspend the obligation of such Lender thereafter to
make or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
Loans, until the Regulatory Change giving rise to such request ceases to be in
effect (in which case the provisions of Section 5.04 hereof shall be
applicable), PROVIDED that such suspension shall not affect the right of such
Lender to receive the compensation so requested.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), each Borrower shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any costs that it
determines are attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) of any
court or governmental or monetary authority (i) following any Regulatory Change
or (ii) implementing any risk-based capital guideline or other requirement
(whether or not having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government or governmental
or supervisory authority implementing at the national level the Basle Accord, of
capital in respect of its Commitments or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below
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that which such Lender (or any Applicable Lending Office or such bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request).
(c) Each Lender shall notify the Borrowers of any event occurring
after the date hereof entitling such Lender to compensation under paragraph (a)
or (b) of this Section 5.01 as promptly as practicable, but in any event within
180 days, after such Lender obtains actual knowledge thereof; PROVIDED that
(i) if any Lender fails to give such notice within 180 days after it obtains
actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 180 days prior to the date that such
Lender does give such notice and (ii) each Lender will designate a different
Applicable Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, except that such Lender shall have no obligation
to designate an Applicable Lending Office located in the United States of
America. Each Lender will furnish to the relevant Borrower a certificate
setting forth in reasonable detail the basis and amount of each request by such
Lender for compensation under paragraph (a) or (b) of this Section 5.01.
Determinations and allocations by any Lender for purposes of this Section 5.01
of the effect of any Regulatory Change pursuant to paragraph (a) of this
Section 5.01, or of the effect of capital maintained pursuant to paragraph (b)
of this Section 5.01, on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in respect of Loans,
and of the amounts required to compensate such Lender under this Section 5.01,
shall be conclusive, PROVIDED that such determinations and allocations are made
on a reasonable basis and consistent with the methodology generally applied by
such Lender.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Administrative Agent determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the
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relevant maturities for purposes of determining rates of interest for
Eurodollar Loans as provided herein; or
(b) if the related Loans are Revolving Credit Loans, the Majority
Revolving Credit Lenders, if the related Loans are Tranche A Term Loans,
the Majority Tranche A Term Lenders, or if the related Loans are Tranche B
Term Loans, the Majority Tranche B Term Lenders, determine, which
determination shall be conclusive, and notify the Administrative Agent that
the relevant rates of interest referred to in the definition of "Eurodollar
Base Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans for such Interest Period is to be determined
are not likely adequately to cover the cost to such Lenders of making or
maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give each Borrower and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and each
Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof.
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
each Borrower thereof (with a copy to the Administrative Agent) and such
Lender's obligation to make or Continue, or to Convert Loans of any other Type
into, Eurodollar Loans shall be suspended until such time as such Lender may
again make and maintain Eurodollar Loans (in which case the provisions of
Section 5.04 hereof shall be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof,
such Lender's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion resulting from
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a circumstance described in Section 5.03 hereof, on such earlier date as such
Lender may specify to the Borrowers with a copy to the Administrative Agent)
and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.01 or 5.03 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrowers with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans under the same
Facility made by other Lenders are outstanding, such Lender's Base Rate Loans
under such Facility shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Base Rate and
Eurodollar Loans under such Facility are allocated among the Lenders ratably (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments under such Facility.
5.05 COMPENSATION. Each Borrower shall pay to the Administrative
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense (excluding lost profit) that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10 hereof) on
a date other than the last day of the Interest Period for such Loan; or
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(b) any failure by such Borrower for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 7 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest (but excluding the
Applicable Margin) for such Loan provided for herein over (ii) the amount of
interest that otherwise would have accrued on such principal amount at a rate
per annum equal to the interest component of the amount such Lender would have
bid in the London interbank market for Dollar deposits of leading banks in
amounts comparable to such principal amount and with maturities comparable to
such period (as reasonably determined by such Lender).
5.06 ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without
limiting the obligations of the Borrowers under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit hereunder or reduce any amount receivable by any Lender hereunder in
respect of any Letter of Credit (which increases in cost, or reductions in
amount receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Borrowers shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent),
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such additional amounts as shall be sufficient to compensate such Lender or
Lenders (through the Administrative Agent) for such increased costs or
reductions in amount. A statement as to such increased costs or reductions
in amount incurred by any such Lender or Lenders, submitted by such Lender or
Lenders to the Borrowers shall be conclusive in the absence of manifest error
as to the amount thereof.
5.07 U.S. TAXES.
(a) Each Borrower agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes imposed with respect to such payment
(or in lieu thereof, payment of such U.S. Taxes by such non-U.S. Person), will
not be less than the amount stated herein to be then due and payable, PROVIDED
that the foregoing obligation to pay such additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Lender is,
on the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 12.06(b) hereof) and on the date of any change in the
Applicable Lending Office of such Lender, either entitled to submit a
Form 1001 (relating to such Lender and entitling it to a complete exemption
from withholding on all interest to be received by it hereunder in respect
of the Loans) or Form 4224 (relating to all interest to be received by such
Lender hereunder in respect of the Loans),
(ii) to any U.S. Taxes to the extent imposed by reason of the
failure by such non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connections with the United States of
America of such non-U.S. Person (including the filing of Form 1001 or 4224,
as appropriate) if such compliance is required by statute or regulation of
the United States of America as a precondition to reduction of or relief or
exemption from such U.S. Taxes, or
(iii) to any tax assessment or other governmental charge which is
payable otherwise than by withholding or deduction from payments due such
non-U.S. Person hereunder.
For the purposes of this Section 5.07(a), (A) "U.S. PERSON" shall mean a
citizen, national or resident of the United States of
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America, a corporation, partnership or other entity created or organized in
or under any laws of the United States of America or any State thereof, or
any estate or trust that is subject to U.S. Federal income taxation
regardless of the source of its income, (B) "U.S. TAXES" shall mean any
present or future tax, assessment or other charge or levy imposed by or on
behalf of the United States of America or any taxing authority thereof or
therein, (C) "FORM 1001" shall mean Form 1001 (Ownership, Exemption, or
Reduced Rate Certificate) of the Department of the Treasury of the United
States of America and (D) "FORM 4224" shall mean Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of the Treasury of
the United States of America (or in relation to either such Form such
successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a
claim to which such Form relates). Each of the Forms referred to in the
foregoing clauses (C) and (D) shall include such successor and related forms
as may from time to time be adopted by the relevant taxing authorities of the
United States of America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the
Borrowers shall deliver to the Administrative Agent for delivery to such
non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
5.08 REPLACEMENT OF LENDERS. If any Lender defaults in its
obligations to make Loans pursuant to Section 2.01 hereof or to fund
unreimbursed drawings under Section 2.03 hereof or requests compensation
pursuant to Section 5.01 or 5.06 hereof (any such Lender so defaulting or so
requesting such compensation being herein called a "REQUESTING LENDER"), the
Parent, upon three Business Days notice, may require that such Requesting Lender
transfer and assign all of its right, title and interest under this Agreement
and such Requesting Lender's Notes, if any, to any bank or other financial
institution (a "PROPOSED LENDER") identified by the Parent that is satisfactory
to the Administrative Agent and the Issuing Banks (and, upon request of the
Parent, the Administrative Agent agrees to use reasonable efforts to assist the
Parent in identifying Proposed Lenders for this purpose) (a) if such Proposed
Lender agrees to assume all of the obligations of such Requesting Lender
hereunder, and to purchase all of such Requesting Lender's Loans hereunder for
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consideration equal to the aggregate outstanding principal amount of such
Requesting Lender's Loans, together with interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Requesting
Lender of all other amounts payable hereunder to such Requesting Lender on or
prior to the date of such transfer (including any fees accrued hereunder and all
amounts payable under Section 5 hereof, including all amounts payable under
Section 5.05 hereof as if all of such Requesting Lender's Loans were being
prepaid in full on such date) and (b) if such Requesting Lender has requested
compensation pursuant to Section 5.01 or 5.06 hereof, such Proposed Lender's
aggregate requested compensation, if any, pursuant to said Section 5.01 or 5.06
with respect to such Requesting Lender's Loans is lower than that of the
Requesting Lender. Subject to the provisions of Section 12.06(b) hereof, such
Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Obligors hereunder the
agreements of the Borrowers contained in Sections 5 and 12.03 hereof (without
duplication of any payments made to such Requesting Lender by the Parent or the
Proposed Lender) shall survive for the benefit of such Requesting Lender under
this Section 5.08 with respect to the time prior to such replacement.
Section 6. GUARANTEE.
6.01 THE GUARANTEE.
(a) The CALI Guarantors hereby jointly and severally guarantee to
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Notes held by each Lender of, CALI and all other amounts
from time to time owing to the Lenders or the Administrative Agent by CALI under
this Agreement and under the Notes and by any Obligor under any of the other
Credit Documents, and all obligations of the Parent or any of its Subsidiaries
to any Lender in respect of any Interest Rate Protection Agreement, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "CALI GUARANTEED OBLIGATIONS"). The CALI Guarantors
hereby further jointly and severally agree that if CALI shall fail to pay in
full when due (whether at stated maturity, by acceleration or otherwise) any of
the CALI Guaranteed Obligations, the CALI Guarantors will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the CALI Guaranteed Obligations, the
same will
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be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal. It is understood and agreed that neither CasTech nor Barmet will, at
any time prior to the Merger Date, be CALI Guarantors or have any obligations
under this Section 6.01(a).
(b) The CasTech Guarantors hereby jointly and severally guarantee to
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the principal of and interest on the Loans made by
the Lenders to, and the Notes held by each Lender of, CasTech and all other
amounts from time to time owing to the Lenders or the Administrative Agent by
CasTech under this Agreement and under the Notes and by CasTech or any of its
Subsidiaries under any of the other Credit Documents, and all obligations of
CasTech or any of its Subsidiaries to any Lender in respect of any Interest Rate
Protection Agreement, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the "CASTECH GUARANTEED
OBLIGATIONS"). The CasTech Guarantors hereby further jointly and severally
agree that if CasTech shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the CasTech Guaranteed
Obligations, the CasTech Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the CasTech Guaranteed Obligations, the same will
be promptly paid in full when due (whether at extended maturity, by acceleration
or otherwise) in accordance with the terms of such extension or renewal.
(c) Each Borrower under the Post-Merger Revolving Credit Facility
hereby guarantees to each Post-Merger Revolving Credit Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by such Lenders
to, and the Notes held by each Lender of, the other Borrowers under such
Facility and all other amounts from time to time owing to the Lenders or the
Administrative Agent by such Borrowers under such Facility under this Agreement
and under the Notes and by any Obligor under any of the other Credit Documents,
and all obligations of such Borrowers or any of their respective Subsidiaries to
any Lender in respect of any Interest Rate Protection Agreement, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "JOINT OBLIGATIONS" and, collectively with the CALI
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Guaranteed Obligations and the CasTech Guaranteed Obligations, the "GUARANTEED
OBLIGATIONS"). The Borrowers under the Post-Merger Revolving Credit Facility
hereby further jointly and severally agree that if any other Borrower under such
Facility shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Joint Obligations, the other Borrowers
under such Facility will promptly pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Joint Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
6.02 OBLIGATIONS UNCONDITIONAL.
(a) The obligations of the CALI Guarantors under Section 6.01(a)
hereof are absolute and unconditional, joint and several, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
CALI under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the CALI Guaranteed Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 6.02(a) that the obligations of the CALI Guarantors hereunder shall be
absolute and unconditional, joint and several, under any and all circumstances.
(b) The obligations of the CasTech Guarantors under Section 6.01(b)
hereof are absolute and unconditional, joint and several, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
CasTech under this Agreement, the Notes or any other agreement or instrument
referred to herein or therein, or any substitution, release or exchange of any
other guarantee of or security for any of the CasTech Guaranteed Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section 6.02(b) that the obligations of the CasTech Guarantors hereunder
shall be absolute and unconditional, joint and several, under any and all
circumstances.
(c) The obligations of the Post-Merger Revolving Credit Borrowers
under Section 6.01(c) hereof are absolute and
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unconditional, joint and several, irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the other
Borrowers under such Facility under this Agreement, the Notes or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Joint Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 6.02(c) that the obligations
of each Borrower under the Post-Merger Revolving Credit Facility shall be
absolute and unconditional, joint and several, under any and all
circumstances.
(d) Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Guarantors hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or the Notes or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any
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requirement that the Administrative Agent or any Lender exhaust any right,
power or remedy or proceed against any Borrower under this Agreement or the
Notes or any other agreement or instrument referred to herein or therein, or
against any other Person under any other guarantee of, or security for, any
of the Guaranteed Obligations.
6.03 REINSTATEMENT. The obligations of the Guarantors under this
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the relevant Borrower in respect of the
relevant Guaranteed Obligations is rescinded or must be otherwise restored by
any holder of any of such Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Guarantors
jointly and severally agree that they will indemnify the Administrative Agent
and each Lender on demand for all reasonable costs and expenses (including,
without limitation, fees of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
6.04 SUBROGATION. The Guarantors hereby jointly and severally agree
that until the payment and satisfaction in full of all Guaranteed Obligations
and the expiration and termination of the Commitments of the Lenders under this
Agreement they shall not exercise any right or remedy arising by reason of any
performance by them of their guarantee in Section 6.01 hereof, whether by
subrogation or otherwise, against the Borrowers or any other guarantor of any of
the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
6.05 REMEDIES. The Guarantors jointly and severally agree that, as
between the Guarantors and the Lenders, the obligations of the relevant Borrower
under this Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 10 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 10)
for purposes of Section 6.01 hereof notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against such Borrower and that, in the event
of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by such Borrower)
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shall forthwith become due and payable by the Guarantors for purposes of said
Section 6.01.
6.06 CONTINUING GUARANTEE. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.07 RIGHTS OF CONTRIBUTION.
(a) Each Relevant Obligor hereby agrees, as between themselves, that
if any Relevant Obligor shall become an Excess Funding Guarantor (as defined
below) by reason of the payment by such Relevant Obligor of any Guaranteed
Obligations, each other Relevant Obligor shall, on demand of such Excess Funding
Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Relevant Obligor's Pro Rata Share (as defined
below and determined, for this purpose, without reference to the Properties,
debts and liabilities of such Excess Funding Guarantor) of the Excess Payment
(as defined in paragraph (b) below) in respect of such Guaranteed Obligations.
The payment obligation of a Relevant Obligor to any Excess Funding Guarantor
under this Section 6.07 shall be subordinate and subject in right of payment to
the prior payment in full of the obligations of such Relevant Obligor under the
other provisions of this Section 6 and such Excess Funding Guarantor shall not
exercise any right or remedy with respect to such excess until payment and
satisfaction in full of all of such obligations.
(b) For purposes of this Section 6.07: (i) "RELEVANT OBLIGOR" shall
mean (x) prior to the Merger Date, CALI and each of the Subsidiary Guarantors
and (y) from and after the Merger Date, each Borrower and each of the Subsidiary
Guarantors; (ii) "EXCESS FUNDING GUARANTOR" shall mean, in respect of any
Guaranteed Obligations, a Relevant Obligor that has paid an amount in excess of
its Pro Rata Share of such Guaranteed Obligations; (iii) "EXCESS PAYMENT" shall
mean, in respect of any Guaranteed Obligations, the amount paid by an Excess
Funding Guarantor in excess of its Pro Rata Share of such Guaranteed
Obligations; (iv) "PRO RATA SHARE" shall mean, for any Relevant Obligor, the
ratio (expressed as a percentage) of the amount of such Relevant Obligor's Net
Assets to the amount of the aggregate Net Assets of all of the Relevant
Obligors, in each case determined as of (A)(x) with respect to any Relevant
Obligor that is a party hereto on the Initial Borrowing Date, the Initial
Borrowing Date or (y) with respect to any other Relevant Obligor, the date such
Relevant Obligor becomes a Relevant Obligor hereunder or (B) the date any demand
is made hereunder in respect
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of the Guaranteed Obligations, whichever date results in the higher amount
(the "DETERMINATION DATE"); and (v) "NET ASSETS" of any Relevant Obligor
shall mean the amount by which the aggregate present fair saleable value of
all assets of such Relevant Obligor (excluding any shares of stock of any
other Relevant Obligor) exceeds the amount of all the debts and liabilities
of such Relevant Obligor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding (x) the obligations of such Relevant
Obligor under this Section 6, assuming the full utilization of permitted
borrowings under this Agreement and after giving effect, on a PRO FORMA basis
(but without duplication), to all such obligations of such Relevant Obligor
to be incurred or assumed as of the Merger Date and (y) the obligations of
such Relevant Obligor in respect of its guarantee of the Senior Subordinated
Debt, assuming all such obligations are in existence as of the date hereof
and after giving effect to all such obligations which shall become effective
as of the Merger Date).
6.08 LIMITATION ON GUARANTEE OBLIGATIONS. Notwithstanding any other
provision of this Agreement to the contrary, in any action or proceeding
involving any state corporate law or any state or Federal bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Relevant Obligor hereunder would otherwise
be held or determined to be void, invalid or unenforceable on account of the
amount of its liability under this Section 6, then notwithstanding any other
provision of this Agreement to the contrary, the amount of such liability shall,
without any further action by such Relevant Obligor or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Section 7. CONDITIONS PRECEDENT.
7.01 INITIAL TENDER OFFER TERM LOAN. The obligation of each Tender
Offer Term Loan Lender to make its initial Tender Offer Term Loan hereunder on
the Initial Borrowing Date is subject to the prior or simultaneous satisfaction
of the following conditions: (1) such extension of credit shall be made on or
before the Tender Offer Loan Commitment Termination Date and (2) the
Administrative Agent shall have received the following documents (with
sufficient copies for each Lender) or other evidence, each of which shall be
satisfactory to the
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Administrative Agent (and to the extent specified below, to the Lenders) in
form and substance:
(a) CORPORATE DOCUMENTS. The following documents, each certified as
indicated below:
(i) for each Obligor, a copy of the charter, as amended and in
effect, of such Obligor certified as of a date reasonably close to the
Initial Borrowing Date by the appropriate Secretary of State and a
certificate from such Secretary of State dated as of a date reasonably
close to the Initial Borrowing Date as to the good standing of and
charter documents filed by such Obligor;
(ii) for each Obligor, a certificate of the Secretary or an
Assistant Secretary of such Obligor, dated the Initial Borrowing Date
and certifying (A) that attached thereto is a true and complete copy
of the by-laws of such Obligor as amended and in effect at all times
from the date on which the resolutions referred to in clause (B) were
adopted to and including the date of such certificate, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors of such Obligor authorizing the
execution, delivery and performance of such of the Basic Documents to
which such Obligor is or is intended to be a party and the extensions
of credit hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
charter of such Obligor has not been amended since the date of the
certification thereto furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer of
such Obligor executing such of the Basic Documents to which such
Obligor is intended to be a party and each other document to be
delivered by such Obligor from time to time in connection therewith
(and the Administrative Agent and each Lender may conclusively rely on
such certificate until it receives notice in writing from such
Obligor); and
(iii) for each such Obligor, a certificate of another officer of
such Obligor, dated the Initial Borrowing Date, as to the incumbency
and specimen signature of the Secretary or Assistant Secretary, as the
case may be, of such Obligor.
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(b) OFFICER'S CERTIFICATE. (i) A certificate of a senior officer of
the Parent, dated the Initial Borrowing Date, to the effect set forth in
clauses (a), (b) and (c) of Section 7.05 hereof (other than with respect to
CasTech and its Subsidiaries) and (ii) a certificate of a senior officer of
CasTech, dated the Initial Borrowing Date, to the effect set forth in
clauses (a) and (b) of Section 7.05 hereof (with respect to CasTech and its
Subsidiaries).
(c) NOTES. The Tender Offer Term Loan Notes, duly completed and
executed for each Tender Offer Term Loan Lender.
(d) OPINIONS OF SPECIAL NEW YORK COUNSEL TO THE OBLIGORS. Opinions,
dated the Initial Borrowing Date, of Sullivan & Cromwell, special New York
counsel to certain of the Obligors, and such other counsel satisfactory to
the Administrative Agent, covering all of the matters set forth in Exhibit
G hereto to be covered by such counsel on the Tender Offer Closing Date
(and each Obligor hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(e) OPINIONS OF LOCAL COUNSEL. Opinions, dated the Initial Borrowing
Date, of local counsel in the respective states in which the Properties
covered by the Mortgages referred to in clause (m) below are located,
substantially in the form of Exhibit H hereto, and in each case covering
such others matters as the Administrative Agent or any Lender may
reasonably request (and each Obligor hereby instructs such counsel to
deliver such opinions to the Lenders and the Administrative Agent).
(f) OPINION OF SPECIAL NEW YORK COUNSEL TO NATWEST. An opinion,
dated the Initial Borrowing Date, of Milbank, Tweed, Hadley & McCloy,
special New York counsel to NatWest, substantially in the form of Exhibit
I-1 hereto (and NatWest hereby instructs such counsel to deliver such
opinion to the Lenders and the Administrative Agent).
(g) TENDER OFFER.
(i) Evidence that at least a majority of the issued and
outstanding CasTech Shares shall have been validly tendered to New CALC at
a price per share not to exceed $20.50, have not been withdrawn and are
available for purchase, all in accordance with the terms and conditions of
the Offer to Purchase;
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(ii) a certificate of a senior officer of the Parent, and a
certificate of a senior officer of New CALC, each dated the Initial
Borrowing Date, certifying that the principal conditions precedent to the
purchase of the CasTech Shares contained in the Offer to Purchase have been
satisfied and not waived except with the consent of the Majority Lenders
and that the Offer to Purchase has been duly authorized and delivered by
New CALC and is in full force and effect as of said date;
(iii) the irrevocable written consent of each of New CALC and the
Parent to the Merger (along with resolutions of the board of directors of
each of New CALC and the Parent, certified by the Secretary or an Assistant
Secretary of such Person as being true and complete); and
(iv) if less than 90% of the issued and outstanding CasTech Shares
are tendered, a copy of the Information Statement which shall in all
respects be ready for filing with the Commission.
(h) TENDER OFFER DOCUMENTS AND GOVERNMENTAL APPROVALS.
(i) Certified copies of all Tender Offer Documents (including the
Offer to Purchase), and all Additional Tender Offer Documents (which
Additional Tender Offer Documents shall be in form and substance acceptable
to the Majority Lenders); and
(ii) evidence that all necessary governmental and material third
party consents and approvals in connection with the Acquisition have been
obtained and remain in effect and all applicable waiting periods
(including, without limitation, under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended) have expired without any action being
taken by any competent authority that restricts, prevents or imposes
materially adverse conditions upon the making or consummation of the
Acquisition.
(i) MERGER AGREEMENT. A certificate of a senior officer of CasTech,
dated the Initial Borrowing Date, and a certificate of a senior officer of
the Parent, that the Merger Agreement has been duly authorized, executed
and delivered by the parties thereto and is in full force and effect and
that there has been no amendment to the Merger Agreement except with the
consent of the Majority Lenders.
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(j) OTHER ACQUISITION DOCUMENTS. Certified copies of all other
Acquisition Documents each of which shall be in form and substance
satisfactory to the Majority Lenders.
(k) COMMONWEALTH PLEDGE AND SECURITY AGREEMENT. The Commonwealth
Pledge and Security Agreement, duly executed and delivered by the Parent,
CALI, the Subsidiary Guarantors and the Administrative Agent, together with
certificate(s) representing all of the issued and outstanding Capital Stock
of CALI, New CALC (prior to giving effect to the Merger) and the other
Subsidiary Guarantors accompanied by undated stock powers duly executed in
blank. In addition, such Obligors shall have taken such other action
(including, without limitation, delivering to the Administrative Agent, for
filing, appropriately completed and duly executed copies of Uniform
Commercial Code financing statements) as the Administrative Agent shall
have requested in order to perfect the security interests created pursuant
to the Commonwealth Pledge and Security Agreement.
(l) CASTECH PLEDGE AND SECURITY AGREEMENT. The CasTech Pledge and
Security Agreement, duly executed and delivered by CasTech, Barmet and the
Administrative Agent, together with certificate(s) representing all of the
issued and outstanding Capital Stock of Barmet accompanied by undated stock
powers duly executed in blank. In addition, CasTech and Barmet shall have
taken such other action (including, without limitation, delivering to the
Administrative Agent, for filing, appropriately completed and duly executed
copies of Uniform Commercial Code financing statements) as the
Administrative Agent shall have requested in order to perfect the security
interests created pursuant to the CasTech Pledge and Security Agreement.
(m) MORTGAGES AND TITLE INSURANCE. To the extent requested by the
Administrative Agent and except as covered by Section 9.18 hereof, the
following documents each of which shall be executed (and, where
appropriate, acknowledged) by Persons satisfactory to the Administrative
Agent:
(i) Mortgages covering the real Properties identified in
Schedules XV and XVI hereto, in each case duly executed and delivered
by the Parent, CALI, CasTech or Barmet, as the case may be, in
recordable form (in such number of copies as the Administrative Agent
shall have reasonably requested);
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(ii) mortgagee policies of title insurance on forms of and issued
by one or more title companies satisfactory to the Administrative
Agent (the "TITLE COMPANIES"), insuring the validity and priority of
the Liens created under such Mortgages for and in amounts satisfactory
to the Administrative Agent, subject only to such exceptions as are
satisfactory to the Administrative Agent and, to the extent necessary
under applicable law, for filing in the appropriate county land
offices, Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly executed;
(iii) as-built surveys, re-dated of recent date or updated by
physical inspection (including aerial inspection) of recent date of
each of the facilities to be covered by such Mortgages, showing such
matters as may be reasonably required by the Administrative Agent,
which surveys shall be in form and content acceptable to the
Administrative Agent, and certified to the Administrative Agent and to
each Lender and the Title Companies, and shall have been prepared by a
registered surveyor reasonably acceptable to the Administrative Agent;
and
(iv) copies of permanent and unconditional certificates of
occupancy for each fee owned real Property covered by a Mortgage (or,
if it is not the practice to issue certificates of occupancy in the
jurisdiction in which the facilities to be covered by such Mortgages
are located, then such other evidence reasonably satisfactory to
Administrative Agent) permitting the fully functioning operation and
occupancy of each such facility and of such other permits necessary
for the use and operation of each such facility issued by the
respective governmental authorities having jurisdiction over each such
facility.
In addition, the Parent shall have paid to the Title Companies all expenses
and premiums of the Title Companies in connection with the issuance of such
policies and in addition shall have paid to the Title Companies an amount
equal to the recording and stamp taxes payable in connection with recording
such Mortgages in the appropriate county land offices.
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(n) NEW CALC NOTE. The New CALC Note, duly executed and delivered by
New CALC.
(o) UCC, TAX LIEN, JUDGMENT AND LITIGATION SEARCHES. Reports
satisfactory to the Lenders listing the results of Uniform Commercial Code
filing, tax lien, judgment and litigation searches prepared by one or more
firms satisfactory to the Administrative Agent with respect to the Obligors
in each of the jurisdictions deemed relevant by the Administrative Agent.
(p) INSURANCE. Certificates of insurance evidencing the existence of
insurance covering risks and issued by such insurers and on such terms as
shall be satisfactory to the Majority Lenders in their reasonable
discretion and evidencing the designation of the Administrative Agent as
the loss payee or additional named insured, as the case may be, thereunder
to the extent required by Section 9.04 hereof, such certificates to be in
such form and contain such information as is specified in said
Section 9.04. In addition, the Parent shall have delivered a certificate
of a Responsible Officer setting forth the insurance obtained by it in
accordance with the requirements of said Section 9.04 and stating that such
insurance is in full force and effect and that all premiums then due and
payable thereon have been paid.
(q) ENVIRONMENTAL MATTERS. A certificate from a senior officer of
CasTech to the effect that CasTech has verified the material accuracy of
all factual statements and other information provided by CasTech and its
employees to ENVIRON that are contained in the Update of Environmental
Assessment dated September 17, 1996 from ENVIRON, except for any
inaccuracies or omissions that would not result in a material adverse
effect on the business, properties, assets, operations, conditions
(financial or otherwise), or prospects of CasTech and its Subsidiaries
(taken as a whole).
(r) SOLVENCY ANALYSIS. A certificate from the chief financial
officer of the Parent that, as of the Initial Borrowing Date and after
giving effect to the Merger, the borrowings contemplated hereunder in the
full amount of the Commitments, the issuance of the full amount of the
Senior Subordinated Debt, and the other transactions contemplated by the
Basic Documents, no Obligor, on a stand-alone or consolidated basis, (i)
will be insolvent or will be rendered insolvent by the Indebtedness
incurred in
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connection therewith, (ii) will be left with unreasonably small
capital with which to conduct its business operations as heretofore
conducted or (iii) will have incurred debts beyond its ability to pay such
debts as they mature. The Administrative Agent shall have also received a
certificate from the chief financial officer of the Parent certifying that
the financial projections and underlying assumptions contained in such
analyses were at the time made prepared in good faith and on the Initial
Borrowing Date and such officer has no reason to believe that such
projections and assumptions are materially inaccurate, and in each case
such analyses were accurately computed.
(s) REPAYMENT OF EXISTING INDEBTEDNESS. Evidence that the principal
of and interest on, and all other amounts owing in respect of, the
Indebtedness of the Parent, CALI, CasTech and Barmet (including, without
limitation, any contingent or other amounts payable in respect of letters
of credit) indicated on Parts A and B, respectively, of Schedules V and VI
hereto that is to be repaid on the Initial Borrowing Date shall have been
(or shall be simultaneously) paid in full, that any commitments to extend
credit under the agreements or instruments relating to such Indebtedness
shall have been canceled or terminated and that all Guarantees in respect
of, and all Liens securing, any such Indebtedness shall have been released
(or arrangements for such release satisfactory to the Administrative Agent
shall have been made); in addition, the Administrative Agent shall have
received from any Person holding any Lien securing any such Indebtedness,
such Uniform Commercial Code termination statements, mortgage releases and
other instruments, in each case in proper form for recording, as the
Administrative Agent shall have requested to release and terminate of
record the Liens securing such Indebtedness (or arrangements for such
release and termination satisfactory to the Administrative Agent shall have
been made).
(t) OTHER DOCUMENTS. Such other documents as the Administrative
Agent or any Lender or special New York counsel to NatWest may reasonably
request.
The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by the Obligors of such fees as the Obligors
shall have agreed to pay or deliver to any Lender or the Administrative Agent in
connection herewith, including, without limitation, the reasonable fees and
expenses of Milbank, Tweed, Hadley & McCloy, special New York counsel to
NatWest, in connection with the negotiation, preparation,
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execution and delivery of this Agreement and the Notes and the other Basic
Documents and the extensions of credit hereunder (to the extent that
statements for such fees and expenses have been delivered to the Obligors).
7.02 INITIAL REVOLVING CREDIT LOANS. The obligation of each
Revolving Credit Lender to make its initial Tender Offer Revolving Credit Loan
hereunder is subject to the conditions precedent that the Administrative Agent
shall have received the following documents (with sufficient copies for each
Revolving Credit Lender), each of which shall be satisfactory to the
Administrative Agent in form and substance:
(a) TENDER OFFER TERM LOANS. Evidence that Tender Offer Term Loans
shall have been borrowed.
(b) NOTES. The Tender Offer Revolving Credit Notes, duly completed
and executed for each Revolving Credit Lender.
(c) BORROWING BASE CERTIFICATE. A Borrowing Base Certificate dated
as of August 31, 1996, duly executed.
7.03 INITIAL POST-MERGER TERM LOANS. The obligation of each Term
Loan Lender to make its initial Post-Merger Term Loan hereunder on the Merger
Date is subject to the conditions precedent that: (i) such extension of credit
shall be made on the Merger Date; and (ii) the Administrative Agent shall have
received the following documents (with sufficient copies for each Lender), each
of which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance:
(a) ASSUMPTION AND CONFIRMATION AGREEMENT. The Assumption and
Confirmation Agreement, duly executed and delivered by CasTech and Barmet.
(b) CORPORATE DOCUMENTS. The following documents, each certified as
indicated below:
(i) a certificate of the Secretary of CasTech dated the Merger
Date certifying (A) that attached thereto is a true and complete copy
of the Certificate of Incorporation and by-laws of CasTech, as amended
and in effect on the Merger Date, (B) that attached thereto is a true
and complete copy of resolutions duly adopted by the board of
directors of CasTech authorizing the execution, delivery and
performance of the Assumption
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Agreement and (C) as to the incumbency and specimen
signature of each officer of CasTech that executed the
Assumption Agreement (and the Administrative Agent and each Lender may
conclusively rely on such certificate until it receives notice in
writing from CasTech); and
(ii) a certificate of another officer of CasTech, dated the Merger
Date, as to the incumbency and specimen signature of the Secretary of
CasTech.
(c) NOTES. The Post-Merger Term Loan Notes, duly completed and
executed for each Term Loan Lender.
(d) MORTGAGES AND TITLE INSURANCE. To the extent requested by the
Administrative Agent, except as covered by Section 9.18 hereof and unless
previously delivered on the Tender Offer Closing Date, the following
documents each of which shall be executed (and, where appropriate,
acknowledged) by Persons satisfactory to the Administrative Agent:
(i) Mortgages covering the real Properties of the Parent, CALI,
CasTech and Barmet identified in Schedules XV and XVI hereto, in each
case duly executed and delivered by the Parent, CALI, CasTech or
Barmet, as the case may be, in recordable form (in such number of
copies as the Administrative Agent shall have reasonably requested);
(ii) mortgagee policies of title insurance on forms of and issued
by one or more Title Companies insuring the validity and priority of
the Liens created under such Mortgages for and in amounts satisfactory
to the Administrative Agent, subject only to such exceptions as are
satisfactory to the Administrative Agent and, to the extent necessary
under applicable law, for filing in the appropriate county land
offices, Uniform Commercial Code financing statements covering
fixtures, in each case appropriately completed and duly executed;
(iii) as-built surveys, re-dated of recent date or updated by
physical inspection (including aerial inspection) of recent date of
each of the facilities to be covered by such Mortgages, showing such
matters as may be required by the Administrative Agent, which surveys
shall be in form and content acceptable to the Administrative Agent,
and certified to the Administrative Agent and to each Lender and the
Title
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Companies, and shall have been prepared by a registered surveyor
reasonably acceptable to the Administrative Agent; and
(iv) copies of permanent and unconditional certificates of
occupancy for each fee owned real Property covered by a Mortgage (or,
if it is not the practice to issue certificates of occupancy in the
jurisdiction in which the facilities to be covered by such Mortgages
are located, then such other evidence reasonably satisfactory to the
Administrative Agent) permitting the fully functioning operation and
occupancy of each such facility and of such other permits necessary
for the use and operation of each such facility issued by the
respective governmental authorities having jurisdiction over each such
facility.
In addition, the Parent shall have paid to the Title Companies all expenses
and premiums of the Title Companies in connection with the issuance of such
policies and in addition shall have paid to the Title Companies an amount
equal to the recording and stamp taxes payable in connection with recording
such Mortgages in the appropriate county land offices.
(e) AMOUNT OF POST-MERGER REVOLVING CREDIT LOANS. Evidence
satisfactory to the Lenders that after giving effect to the borrowings of
the Post-Merger Term Loans and the repayment of the Tender Offer Loans on
the Merger Date and the borrowings of the Post-Merger Revolving Credit
Loans contemplated to occur on the Merger Date, the aggregate outstanding
principal amount of Post-Merger Revolving Credit Loans as of the Merger
Date will not exceed $160,000,000.
(f) LIENS. Evidence that, after giving effect to the Merger, the
CasTech Pledge and Security Agreement creates a valid and perfected Lien on
the Property of CasTech and Barmet subject to no other Lien (except Liens
permitted by Section 9.06 hereof).
(g) MERGER. Evidence that the Parent, New CALC and CasTech shall
have consummated the Merger in compliance with the Merger Agreement and all
applicable laws.
(h) REPAYMENT OF EXISTING INDEBTEDNESS. To the extent not repaid
pursuant to Section 7.01 hereof, evidence that the principal of and
interest on, and all other amounts
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owing in respect of, the Indebtedness of CasTech (including,
without limitation, any contingent or other amounts payable
in respect of letters of credit) indicated on Part A of Schedule VI
hereto that is to be repaid on the Merger Date shall have been (or shall be
simultaneously) paid in full, that any commitments to extend credit under
the agreements or instruments relating to such Indebtedness shall have been
canceled or terminated and that all Guarantees in respect of, and all Liens
securing, any such Indebtedness shall have been released (or arrangement
for such release satisfactory to the Majority Lenders shall have been
made).
(i) OFFICER'S CERTIFICATE. A certificate of a senior officer of the
Parent to the effect set forth in clauses (a), (b) and (c) of Section 7.05
hereof and that none of the provisions of the Merger Agreement as in effect
on the Initial Borrowing Date, has been amended or otherwise modified
without the consent of the Majority Lenders.
(j) OPINIONS OF SPECIAL NEW YORK COUNSEL TO THE OBLIGORS. Opinions,
dated the Merger Date, of Sullivan & Cromwell, special New York counsel to
certain of the Obligors, and such other counsel satisfactory to the
Administrative Agent, covering all of the matters set forth in Exhibit G
hereto to be covered by such counsel on the Merger Date (and each Obligor
hereby instructs such counsel to deliver such opinion to the Lenders and
the Administrative Agent).
(k) OPINION OF LOCAL COUNSEL. Opinions, dated the Merger Date, of
local counsel in the respective states in which the Properties covered by
the Mortgages referred to in clause (d) above are located, substantially in
the form of Exhibit H hereto, in each case covering such other matters as
the Administrative Agent or any Lender may reasonably request (and each
Obligor hereby instructs such counsel to deliver such opinions to the
Lenders and the Administrative Agent).
(l) OPINION OF SPECIAL NEW YORK COUNSEL TO NATWEST. An opinion,
dated the Merger Date, of Milbank, Tweed, Hadley & McCloy, special New York
counsel to NatWest, substantially in the form of Exhibit I-2 hereto (and
NatWest hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
(m) SOLVENCY ANALYSIS. A certificate from the chief financial
officer of the Parent that, as of the Merger Date
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and after giving effect to the Merger, the borrowings contemplated
hereunder in the full amount of the Commitments, the issuance of
the full amount of the Senior Subordinated Debt, and the other
transactions contemplated by the Basic Documents, no Obligor,
on a stand-alone or consolidated basis, (i) will be insolvent or
will be rendered insolvent by the Indebtedness incurred in connection
therewith, (ii) will be left with unreasonably small capital with which to
conduct its business operations as heretofore conducted or (iii) will have
incurred debts beyond its ability to pay such debts as they mature. The
Administrative Agent shall have also received a certificate from the chief
financial officer of the Parent certifying that the financial projections
and underlying assumptions contained in such analyses were at the time made
prepared in good faith and on the Merger Date and such officer has no
reason to believe that such projections and assumptions are materially
inaccurate, and in each case such analyses were accurately computed.
(n) FINANCING STATEMENTS. Unless previously delivered on the Tender
Offer Closing Date, appropriately completed and duly executed copies of
Uniform Commercial Code Financing Statements, as requested by the
Administrative Agent, in order to perfect the security interests created
pursuant to the CasTech Pledge and Security Agreement.
(o) OTHER DOCUMENTS. Such other documents as the Administrative
Agent or any Lender or special New York counsel to the Administrative Agent
may reasonably request.
7.04 INITIAL POST-MERGER REVOLVING CREDIT LOANS. The obligation of
each Revolving Credit Lender to make its initial Post-Merger Revolving Credit
Loan hereunder is subject to the conditions precedent that the Administrative
Agent shall have received the following documents (with, in the case of
clause (c) below, sufficient copies for each Revolving Credit Lender), each of
which shall be satisfactory to the Administrative Agent in form and substance:
(a) POST-MERGER TERM LOANS. Evidence that the Post-Merger Term Loans
shall have been borrowed.
(b) NOTES. The Post-Merger Revolving Credit Notes, duly completed
and executed for each Revolving Credit Lender.
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(c) BORROWING BASE CERTIFICATE. A Borrowing Base Certificate dated
as of a date not more than 30 days prior to the date of the making of the
initial Post-Merger Revolving Credit Loans, duly executed.
7.05 INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT. The obligation of
the Lenders to make any Loan or otherwise extend any credit to either Obligor
upon the occasion of each borrowing or other extension of credit hereunder
(including the initial borrowings of the Tender Offer Loans and the Post-Merger
Loans) is subject to the further conditions precedent that, both immediately
prior to the making of such Loan or other extension of credit and also after
giving effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by each Obligor in
Section 8 hereof (other than, in the case of any borrowing prior to the
Merger Date, the representations and warranties set forth in paragraph (ii)
in the last sentence of Section 8.02 hereof) and in each other Basic
Document to which such Obligor is a party, shall be true and complete in
all material respects on and as of the date of the making of such Loan or
other extension of credit (and after giving effect thereto) with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date); and
(c) to the extent there are Loans outstanding under any Revolving
Credit Facility, the aggregate principal amount of such Loans together with
the aggregate amount of all Letter of Credit Liabilities under such
Facility shall not exceed the Borrowing Base for such Facility reflected on
the most recent Borrowing Base Certificate delivered pursuant to Section
7.04(c) or 9.01(f) hereof.
Each notice of borrowing or request for the issuance of a Letter of Credit by a
Borrower hereunder shall constitute a certification by such Borrower to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless such Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
7.06 CERTAIN DETERMINATIONS. For purposes of determining compliance
with the conditions specified in
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Sections 7.01, 7.02, 7.03 and 7.04 hereof, each Lender shall be deemed to be
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lenders unless an officer of the
Administrative Agent responsible for the transactions contemplated by the
Credit Documents shall have received notice from such Lender prior to the
Initial Borrowing Date (or, in the case of Sections 7.02, 7.03 and 7.04
hereof, the initial Loan under such Section) specifying its objection
thereto, and such Lender shall not have made available to the Administrative
Agent such Lender's ratable portion of such Loan.
Section 8. REPRESENTATIONS AND WARRANTIES. Each Obligor represents
and warrants to the Administrative Agent and the Lenders that:
8.01 CORPORATE EXISTENCE. Each Obligor and its Subsidiaries
(including for purposes of this Section 8.01, CasTech and its Subsidiaries):
(a) is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to be
conducted except where the failure to have the same could not reasonably be
expected to have a Material Adverse Effect; and (c) is qualified to do business
and is in good standing as a foreign entity in all jurisdictions in which the
nature of the business conducted by it requires such qualification except where
failure so to qualify could not reasonably be expected (either individually or
in the aggregate) to have a Material Adverse Effect.
8.02 FINANCIAL CONDITION. The Parent has heretofore furnished to
each of the Lenders the following:
(a) consolidated and consolidating balance sheets of the Parent
and its Subsidiaries as at December 31, 1995 and the related consolidated
and consolidating statements of income, retained earnings and cash flows of
the Parent and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon (in the case of said consolidated balance sheet
and statements) of Coopers & Lybrand L.L.P., and the unaudited consolidated
and consolidating balance sheets of the Parent and its Subsidiaries as at
June 30, 1996 and the related consolidated and consolidating
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statements of income, retained earnings and cash flows of the Parent and
its Subsidiaries for the six-month period ended on such date; and
(b) consolidated and consolidating balance sheets of CasTech and
its Subsidiaries as at March 31, 1996 and the related consolidated and
consolidating statements of income, retained earnings and cash flows of
CasTech and its Subsidiaries for the fiscal year ended on said date, with
the opinion thereon (in the case of said consolidated balance sheet and
statements) of Ernst & Young L.L.P., and the unaudited consolidated and
consolidating balance sheets of CasTech and its Subsidiaries as at June 30,
1996 and the related consolidated and consolidating statements of income,
retained earnings and cash flows of CasTech and its Subsidiaries for the
three-month period ended on such date.
All such financial statements fairly present, in all material respects, the
consolidated financial condition of the Parent and its Subsidiaries and CasTech
and its Subsidiaries, as the case may be, and (in the case of said consolidating
financial statements) the respective unconsolidated financial condition of the
Parent and its Subsidiaries and CasTech and its Subsidiaries, as the case may
be, as at said dates and the consolidated and unconsolidated results of their
respective operations for the fiscal years and periods ended on said dates
(subject, in the case of such financial statements as at June 30, 1996, to
normal year-end audit adjustments), all in accordance with generally accepted
accounting principles and practices applied on a consistent basis. Except as
otherwise disclosed to the Administrative Agent or the Lenders in writing prior
to the date hereof, none of the Parent nor any of its Subsidiaries, nor CasTech
nor any of its Subsidiaries, has on the date hereof any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said balance sheets as at said
dates. Since December 31, 1995 (in the case of the Parent and its Subsidiaries)
or March 31, 1996 (in the case of CasTech and its Subsidiaries):
(i) there has been no material adverse change in the business,
properties, assets, operations, conditions (financial or otherwise), or
prospects of CasTech and its Subsidiaries, taken as a whole; and
(ii) other than the Merger, there has been no material adverse change
in the business, properties, assets,
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operations, conditions (financial or otherwise), or prospects of the Parent
and its Subsidiaries (including CALI and New CALC) taken as a whole.
8.03 LITIGATION. Except as disclosed in Schedule II hereto, there
are no legal or arbitral proceedings, or any proceedings by or before any
governmental or regulatory authority or agency, now pending or (to the knowledge
of any Obligor) threatened against any Obligor or any of its Subsidiaries that
could reasonably be expected (either individually or in the aggregate) to have a
Material Adverse Effect.
8.04 NO BREACH. Except as disclosed in Schedule III hereto, none of
the execution and delivery of this Agreement and the Notes and the other Basic
Documents, the consummation of the transactions herein and therein contemplated
or compliance with the terms and provisions hereof and thereof will conflict
with or result in a breach of, or require any consent under, the charter or
by-laws of any Obligor or any of its Subsidiaries (including, for purposes of
this Section 8.04, CasTech and its Subsidiaries), or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any material agreement or instrument to
which it or any of its Subsidiaries is a party or by which any of them or any of
their Property is bound or to which any of them is subject, or constitute a
default under any such agreement or instrument, or (except for the Liens created
pursuant to the Security Documents) result in the creation or imposition of any
Lien upon any Property of any Obligor or any of its Subsidiaries pursuant to the
terms of any such agreement or instrument.
8.05 ACTION. Subject only to approval of the Merger Agreement by
holders of a majority of the outstanding CasTech Shares, each Obligor and each
of its Subsidiaries (including, for purposes of this Section 8.05, CasTech and
its Subsidiaries) has all necessary corporate power, authority and legal right
to execute, deliver and perform its obligations under each of the Basic
Documents to which it is a party; the execution, delivery and performance by
each Obligor of each of the Basic Documents to which it is a party have been
duly authorized by all necessary corporate action on its part; and this
Agreement has been duly and validly executed and delivered by each Obligor and
constitutes, and each of the Notes and the other Basic Documents to which it is
a party when executed and delivered by such Obligor (in the case of the Notes,
for value) will constitute, its legal, valid and binding obligation, enforceable
against each Obligor in accordance with its terms.
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8.06 APPROVALS. Except for filings and recordings in respect of the
Liens created pursuant to the Security Documents and the other filings and
recordings identified on Schedule IV hereto, no authorizations, approvals or
consents of, and no filings or registrations with, any governmental or
regulatory authority or agency, or any securities exchange, are necessary for
the execution, delivery or performance by any Obligor of this Agreement or any
of the other Basic Documents to which it is a party or for the legality,
validity or enforceability hereof or thereof.
8.07 USE OF CREDIT. Other than the incurrence of Indebtedness
hereunder and under the Senior Subordinated Debt Documents in connection with
the Acquisition, no Obligor nor any of its Subsidiaries (including, for purposes
of this Section 8.07, CasTech and its Subsidiaries) is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock. After applying the proceeds of each Loan, not more than 25% of the value
of the assets of any Obligor and such Obligor's Subsidiaries (as determined in
good faith by such Obligor) will consist of or be represented by Margin Stock
other than the CasTech Shares. Neither the making of any of the Loans nor
issuance of the Letters of Credit nor the use of the proceeds thereof will
violate or be inconsistent with the provisions of Regulations G, U or X. If
requested by any Lender or the Administrative Agent, the Parent and each
Borrower will furnish to the Administrative Agent and each Lender a statement in
conformity with the requirements of Federal Reserve Form U-1 referred to in
Regulation U, the statements made in which shall be such, in the opinion of each
Lender, as to permit the transactions contemplated hereby in accordance with
Regulation U.
8.08 ERISA. Each Plan, and, to the knowledge of the Parent, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, except where
such non-compliance thereof could not reasonably be expected to lead to a
material liability, and no event or condition has occurred and is continuing as
to which any Obligor (or, prior to the Merger, CasTech) would be under an
obligation to furnish a report to the Lenders under Section 9.01(e) hereof,
unless such event or condition could not reasonably be expected to lead to a
material liability.
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8.09 TAXES.
(a) The Parent and its Subsidiaries are members of an affiliated
group of corporations filing consolidated returns for Federal income tax
purposes, of which the Parent is the "common parent" (within the meaning of
Section 1504 of the Code) of such group.
(b) The Parent and its Subsidiaries (including, for purposes of this
Section 8.09(b), CasTech and its Subsidiaries) have filed all Federal income tax
returns and all other material tax returns that are required to be filed by them
and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by them or any of their respective Subsidiaries, subject to
any extensions granted so long as no penalty shall be due in relation thereto.
The charges, accruals and reserves on the books of the Parent and its
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Parent, adequate. Neither the Parent nor any of its Subsidiaries
has given or been requested to give a waiver of the statute of limitations
relating to the payment of any Federal, state, local and foreign taxes or other
impositions.
8.10 INVESTMENT COMPANY ACT. Neither the Parent nor any of its
Subsidiaries (including, for purposes of this Section 8.10, CasTech and its
Subsidiaries) is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
8.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Parent nor any
of its Subsidiaries (including, for purposes of this Section 8.11, CasTech and
its Subsidiaries) is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 MATERIAL AGREEMENTS AND LIENS.
(a) Part A of Schedule V hereto is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, the Parent and its Subsidiaries outstanding on the
date hereof, or that (after giving effect to the transactions contemplated to
occur on or before the Initial Borrowing Date) will be outstanding on the
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Initial Borrowing Date, and the aggregate principal or face amount outstanding
or that may become outstanding under each such arrangement is correctly
described in Part A of said Schedule V.
(b) Part A of Schedule VI hereto is a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to any
Indebtedness or any extension of credit (or commitment for any extension of
credit) to, or guarantee by, CasTech and its Subsidiaries outstanding on the
date hereof, or that (after giving effect to the transactions contemplated to
occur on or before the Initial Borrowing Date) will be outstanding on the
Initial Borrowing Date, and the aggregate principal or face amount outstanding
or that may become outstanding under each such arrangement is correctly
described in Part A of said Schedule VI.
(c) Part B of Schedule V hereto is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof, or
that (after giving effect to the transactions contemplated to occur on or before
the Initial Borrowing Date) will be outstanding on the Initial Borrowing Date,
covering any Property of the Parent or any of its Subsidiaries, and the
aggregate Indebtedness secured (or that may be secured) by each such Lien and
the Property covered by each such Lien is correctly described in Part B of said
Schedule V.
(d) Part B of Schedule VI hereto is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof, or
that (after giving effect to the transactions contemplated to occur on or before
the Initial Borrowing Date) will be outstanding on the Initial Borrowing Date,
covering any Property of CasTech or any of its Subsidiaries, and the aggregate
Indebtedness secured (or that may be secured) by each such Lien and the Property
covered by each such Lien is correctly described in Part B of said Schedule VI.
8.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule VII
hereto or as could not reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect:
(a) Each of the Parent and its Subsidiaries (including, for all
purposes of this Section 8.13, CasTech and its Subsidiaries) has obtained
all environmental, health and safety permits, licenses and other
authorizations required under all Environmental Laws to carry on its
business as being conducted, and each of such permits,
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licenses and authorizations is in full force and effect and each of the
Parent and its Subsidiaries is in compliance with the terms and conditions
thereof, and is also in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder.
(b) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed and, to the Parent's or any of its Subsidiaries'
knowledge, no investigation or review is pending or threatened by any
governmental or other entity with respect to any alleged failure by the
Parent or any of its Subsidiaries to have any environmental, health or
safety permit, license or other authorization required under any
Environmental Law in connection with the conduct of the business of the
Parent or any of its Subsidiaries or with respect to any generation,
treatment, storage, recycling, transportation, discharge or disposal, or
any Release of any Hazardous Materials generated by the Parent or any of
its Subsidiaries.
(c) Neither the Parent nor any of its Subsidiaries owns, operates or
leases a treatment, storage or disposal facility requiring a permit under
the Resource Conservation and Recovery Act of 1976, as amended; and
(i) no polychlorinated biphenyls (PCB's) is or has been
present at any site or facility now or previously owned, operated or
leased by the Parent or any of its Subsidiaries;
(ii) no Hazardous Materials have been Released at, on or under
any site or facility now or previously owned, operated or leased by
the Parent or any of its Subsidiaries in a reportable quantity
established by statute, ordinance, rule, regulation or order; and
(iii) no Hazardous Materials have been otherwise Released at,
on or under any site or facility now or previously owned, operated or
leased by the Parent or any of its Subsidiaries.
(d) Neither the Parent nor any of its Subsidiaries has transported or
arranged for the transportation of any
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Hazardous Material to any location that is listed on the
National Priorities List ("NPL") under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), listed for possible inclusion on the NPL by
the Environmental Protection Agency in the Comprehensive Environmental
Response and Liability Information System, as provided for by 40 C.F.R.
Section 300.5 ("CERCLIS"), or on any similar state or local list or that
is the subject of Federal, state or local enforcement actions or other
investigations that could reasonably be expected to lead to Environmental
Claims against the Parent or any of its Subsidiaries.
(e) No Hazardous Material generated by the Parent or any of its
Subsidiaries has been recycled, treated, stored, disposed of or Released by
the Parent or any of its Subsidiaries in violation of Environmental Law or
that could reasonably be expected to give rise to liability under
Environmental Law.
(f) No oral or written notification of a Release of a Hazardous
Material has been filed by or on behalf of the Parent or any of its
Subsidiaries and no site or facility now or previously owned, operated or
leased by the Parent or any of its Subsidiaries is listed or proposed for
listing on the NPL, CERCLIS or any similar state list of sites requiring
investigation or clean-up.
(g) No Liens have arisen under or pursuant to any Environmental Laws
on any site or facility owned, operated or leased by the Parent or any of
its Subsidiaries, and no government action has been taken or is known by
the Parent or any such Subsidiary to be in process that could reasonably be
expected to subject any such site or facility to such Liens and neither the
Parent nor any of its Subsidiaries would be required to place any notice or
restriction relating to the presence of Hazardous Materials at any site or
facility owned by it in any deed to the real property on which such site or
facility is located.
(h) The Parent and its Subsidiaries have made available to the
Administrative Agent certain environmental investigations, studies, audits,
tests, reviews or other analyses conducted by or that are in the possession
of the Parent or any of its Subsidiaries with respect to all matters
relating to facts, circumstances or conditions at or affecting any site or
facility now or previously owned, operated or leased by the Parent or any
of its Subsidiaries
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and that, to the Parent's knowledge, could reasonably be expected
(either individually or in the aggregate) to have resulted in a
Material Adverse Effect.
8.14 CAPITALIZATION.
(a) Part A of Schedule VIII hereto correctly sets forth the
authorized Capital Stock of the Parent on the date hereof. All of the issued
and outstanding shares of each class of Capital Stock of the Parent on the date
hereof are duly and validly issued, fully paid and nonassessable. On the date
hereof, except as disclosed in Part B of said Schedule VIII, (x) there are no
outstanding Equity Rights with respect to the Parent and there are no
outstanding obligations of the Parent or any of its Subsidiaries to
repurchase, redeem, or otherwise acquire any shares of Capital Stock of the
Parent, and (y) are there no outstanding obligations of the Parent or any of its
Subsidiaries (including, without limitation, CALI or New CALC) to make payments
to any Person, such as "phantom stock" payments, where the amount thereof is
calculated with reference to the fair market value or equity value of the Parent
or any of its Subsidiaries (including, without limitation, CALI or New CALC).
(b) Part A of Schedule IX hereto correctly sets forth the authorized
Capital Stock of CALI on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of CALI on the date hereof are duly and
validly issued, fully paid and nonassessable. On the date hereof all of such
issued and outstanding shares of Capital Stock are owned beneficially and of
record by the Parent. On the date hereof, except as disclosed in Part B of said
Schedule IX, there are no outstanding Equity Rights with respect to CALI and
there are no outstanding obligations of the Parent or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of CALI.
(c) Part A of Schedule X hereto correctly sets forth the authorized
Capital Stock of New CALC on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of New CALC on the date hereof are duly
and validly issued, fully paid and nonassessable. On the date hereof all of
such issued and outstanding shares of Capital Stock are owned beneficially and
of record by the Parent. On the date hereof, except as disclosed in Part B of
said Schedule X, there are no outstanding Equity Rights with respect to New CALC
and there are no outstanding obligations of the Parent or any of its
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Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of New CALC.
(d) Part A of Schedule XI hereto correctly sets forth the authorized
Capital Stock of CasTech on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of CasTech are fully paid and
nonassessable. On the date hereof, except as disclosed in Part B of said
Schedule XI, (x) there are no outstanding Equity Rights with respect to
CasTech and there are no outstanding obligations of CasTech or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of CasTech and (y) there are no outstanding obligations of CasTech or any
of its Subsidiaries to make payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market value or equity value of CasTech or any of its Subsidiaries (other than
rights arising under Section 262 of the Delaware General Corporation Law in
connection with the Acquisition).
(e) Part A of Schedule XII hereto correctly sets forth the authorized
Capital Stock of Barmet on the date hereof. All of the issued and outstanding
shares of each class of Capital Stock of Barmet are fully paid and
nonassessable. On the date hereof, except as disclosed in Part B of said
Schedule XII, (x) there are no outstanding Equity Rights with respect to
Barmet and there are no outstanding obligations of Barmet or any of its
Subsidiaries to repurchase, redeem, or otherwise acquire any shares of Capital
Stock of Barmet and (y) there are no outstanding obligations of Barmet or any of
its Subsidiaries to make payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market value or equity value of Barmet or any of its Subsidiaries.
(f) On the Merger Date and after giving effect to the Merger, the
authorized Capital Stock of New CALC will consist of an aggregate of 1000 shares
consisting of Common Stock, par value $0.01 per share. All of the issued and
outstanding shares of New CALC on such date and at such time will be duly and
validly issued, fully paid and nonassessable. As of such date and time, all of
such shares will be owned beneficially and of record by the Parent and (x) there
will be no outstanding Equity Rights with respect to New CALC and (y) there will
be no outstanding obligations of the Parent or New CALC or any of their
respective Subsidiaries to repurchase, redeem, or otherwise acquire any shares
of Capital Stock of New CALC, nor will there be any outstanding obligations of
the Parent or New CALC or any of their
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respective Subsidiaries to make payments to any Person, such as "phantom
stock" payments, where the amount thereof is calculated with reference to the
fair market value or equity value of New CALC or any of its Subsidiaries
(other than rights arising under Section 262 of the Delaware General
Corporation Law in connection with the Acquisition).
8.15 SUBSIDIARIES, ETC.
(a) Set forth in Part A of Schedule XIII hereto is a complete and
correct list of all of the Subsidiaries of the Parent as of the date hereof
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Part A of said Schedule XIII (x) each of the
Parent and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Part A of said Schedule XIII, (y) all of the issued and outstanding Capital
Stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person.
(b) Set forth in Part B of Schedule XIII hereto is a complete and
correct list of all of the Subsidiaries of the Parent after giving effect to the
Acquisition, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the nature of the ownership interests held by each
such Person and the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in Part B of said Schedule XIII,
as of the Merger Date and after giving effect to the Merger, (x) each of the
Parent and its Subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents), and has the unencumbered right to
vote, all outstanding ownership interests in each Person shown to be held by it
in Part B of said Schedule XIII, (y) all of the issued and outstanding Capital
Stock of each such Person organized as a corporation is validly issued, fully
paid and nonassessable and (z) there are no outstanding Equity Rights with
respect to such Person.
(c) Set forth in Part C of Schedule XIII hereto is a complete and
correct list of all Investments (other than
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Investments disclosed in Parts A and B of said Schedule XIII hereto) held by
the Parent, CasTech or any of their respective Subsidiaries on the date
hereof and, for each such Investment, (x) the identity of the Person or
Persons holding such Investment and (y) the nature of such Investment.
Except as disclosed in Part C of said Schedule XIII, each of the Parent,
CasTech and their respective Subsidiaries owns, free and clear of all Liens
(other than Liens created pursuant to the Security Documents), all such
Investments.
(d) None of the Subsidiaries of the Parent (including, for purposes
of this Section 8.15(d), CasTech or any of its Subsidiaries) is, on the date
hereof, subject to any indenture, agreement, instrument or other arrangement of
the type described in Section 9.17(c) hereof.
8.16 TITLE TO ASSETS. Except as disclosed in Schedule XIV hereto,
each of the Parent, CasTech and their respective Subsidiaries owns and has on
the date hereof good and marketable title (subject only to Liens permitted by
Section 9.06 hereof) to the Properties shown to be owned in the most recent
financial statements referred to in Section 8.02 hereof (other than Properties
disposed of in the ordinary course of business or otherwise permitted to be
disposed of pursuant to Section 9.05 hereof). Each of the Parent, CasTech and
their respective Subsidiaries owns and has on the date hereof good and
marketable title to, or (in the case of any real property leases), a valid and
subsisting leasehold estate in and to, and enjoys on the date hereof peaceful
and undisturbed possession of, all Properties (subject only to Liens permitted
by Section 9.06 hereof) that are necessary for the operation and conduct of its
businesses.
8.17 TRUE AND COMPLETE DISCLOSURE. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Credit Documents or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements herein
or therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by the
Parent and its Subsidiaries to the Administrative Agent and the Lenders in
connection with this Agreement and the other Credit Documents and the
transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect, or (in the case of projections) based on reasonable
estimates, on
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the date as of which such information is stated or certified.
There is no fact known to any Obligor that could reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect that has not
been disclosed herein, in the other Credit Documents or in a report, financial
statement, exhibit, schedule, disclosure letter or other writing furnished to
the Lenders for use in connection with the transactions contemplated hereby or
thereby.
8.18 REAL PROPERTY. Set forth on (a) Schedule XV hereto is a list,
as of the date hereof, of all of the real property interests held by the Parent
and its Subsidiaries, indicating in each case whether the respective Property is
owned or leased, the identity of the owner or lessee and the location of the
respective Property; and (b) Schedule XVI hereto is a list, as of the date
hereof, of all of the real property interests held by CasTech and its
Subsidiaries, indicating in each case whether the respective Property is owned
or leased, the identity of the owner or lessee and the location of the
respective Property.
8.19 SECURITY DOCUMENTS. The Security Documents create, as security
for the obligations purported to be secured thereby, a valid and enforceable
perfected security interest in and Lien on all of the Properties to be covered
thereby in favor of the Administrative Agent, superior to and prior to the right
of all third Persons and subject to no other Liens (other than Permitted Liens).
8.20 ACQUISITION COSTS. The Acquisition Costs will not exceed
$20,000,000.
Section 9. COVENANTS OF THE OBLIGORS. Each Obligor covenants and
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Borrowers hereunder:
9.01 FINANCIAL STATEMENTS, ETC. The Parent (for itself and on behalf
of each other Obligor) shall deliver to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each quarterly fiscal period of each fiscal year of the Parent,
consolidated and consolidating statements of income, retained earnings and
cash flows of the Parent and its Subsidiaries for such period and for the
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period from the beginning of the respective fiscal year to the end of such
period, and the related consolidated and consolidating balance sheets of
the Parent and its Subsidiaries as at the end of such period, setting forth
in each case in comparative form the corresponding consolidated and
consolidating figures for the corresponding periods in the preceding fiscal
year (PROVIDED that, until four full fiscal quarters of the Parent have
elapsed since the Merger Date, such corresponding figures shall be the pro
forma consolidated figures furnished to the Administrative Agent prior to
the Initial Borrowing Date), accompanied by a certificate of a Responsible
Officer of the Parent, which certificate shall state that said consolidated
financial statements fairly present in all material respects the
consolidated financial condition and results of operations of the Parent
and its Subsidiaries, and said consolidating financial statements fairly
present in all material respects the respective individual unconsolidated
financial condition and results of operations of the Parent and of each of
its Subsidiaries, in each case in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and for,
such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Parent, consolidated and consolidating
statements of income, retained earnings and cash flows of the Parent and
its Subsidiaries for such fiscal year and the related consolidated and
consolidating balance sheets of the Parent and its Subsidiaries as at the
end of such fiscal year, setting forth in each case in comparative form the
corresponding consolidated and consolidating figures for the preceding
fiscal year (PROVIDED that, until a full fiscal year of the Parent has
elapsed since the Merger Date, such corresponding figures shall be the pro
forma consolidated figures furnished to the Administrative Agent prior to
the Initial Borrowing Date), and accompanied (i) in the case of said
consolidated statements and balance sheet of the Parent, by an opinion
thereon of independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements fairly present in all material respects the consolidated
financial condition and results of operations of the Parent and its
Subsidiaries as at the end of, and for, such fiscal year in accordance with
generally accepted accounting principles, and a statement of such
accountants to the effect that, in making the examination necessary for
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their opinion, nothing came to their attention that caused them to believe
that the Parent was not in compliance with Sections 9.07(g), 9.09, 9.10 and
9.11 hereof, insofar as such Sections relate to accounting matters, and
(ii) in the case of said consolidating statements and balance sheets, by a
certificate of a senior financial officer of the Parent, which certificate
shall state that said consolidating financial statements fairly present in
all material respects the respective individual unconsolidated financial
condition and results of operations of the Parent and of each of its
Subsidiaries, in each case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such fiscal
year;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Parent or any of its Subsidiaries shall have filed with the Commission (or
any governmental agency substituted therefor) or any national securities
exchange;
(d) promptly upon the mailing thereof to the shareholders of the
Parent generally or to holders of Subordinated Indebtedness or Senior
Subordinated Debt generally, copies of all financial statements, reports
and proxy statements so mailed;
(e) as soon as possible, and in any event within 15 days after any
Obligor knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan has occurred
or exists, a statement signed by a Responsible Officer of the Parent
setting forth details respecting such event or condition and the action, if
any, that the Parent or its ERISA Affiliate proposes to take with respect
thereto (and a copy of any report or notice required to be filed with or
given to the PBGC by the Parent or an ERISA Affiliate with respect to such
event or condition):
(i) any reportable event, as defined in Section 4043(c) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (PROVIDED that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its
due date a required installment under
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Section 412(m) of the Code or Section 302(e) of ERISA, shall be
a reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code); and any request for
a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041(c)(1)(A) of ERISA of
a notice of intent to terminate any Plan or any action taken by any
Obligor or an ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by any Obligor or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by any Obligor or any ERISA Affiliate that results in liability
under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of a purchaser default) or the
receipt by any Obligor or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA or that it intends to terminate or
has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against any Obligor or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such
Plan is a part if any Obligor or an ERISA Affiliate fails to timely
provide security to the Plan in accordance with the provisions of said
Sections;
(f) as soon as available and in any event within 15 Business Days
after the end of each monthly accounting period (ending on the last day of
each calendar month), a Borrowing Base Certificate of the Parent as at the
last day of such accounting period;
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(g) periodically at the request of the Administrative Agent or the
Majority Lenders, a report of an independent collateral auditor (which may
be, or be affiliated with, one of the Lenders) selected by the
Administrative Agent and reasonably acceptable to the Parent with respect
to the Receivables and Inventory components included in the Borrowing Base
as at the end of any monthly accounting period, which report shall indicate
that, based upon a review by such auditors of the Receivables (including,
without limitation, verification with respect to the amount, aging,
identity and credit of the respective account debtors and the billing
practices of the Parent and its Subsidiaries) and Inventory (including,
without limitation, verification as to the value, location and respective
types), the information set forth in the Borrowing Base Certificate
delivered by the Parent as at the end of such accounting period is accurate
and complete in all material respects and in addition, as soon as available
and in any event within 45 days after the end of each fiscal year of the
Parent, a like report of independent public accountants of recognized
national standing with respect to the Receivables and Inventory components
included in the Borrowing Base as at the end of such fiscal year;
(h) promptly after any Responsible Officer of any Obligor knows or
has reason to believe that any Default has occurred, a notice of such
Default describing the same in reasonable detail and, together with such
notice or as soon thereafter as possible, a description of the action that
the Obligors have taken or propose to take with respect thereto; and
(i) from time to time such other information regarding the financial
condition, operations, business or prospects of the Parent or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as
any Lender or the Administrative Agent may reasonably request.
The Parent will furnish to each Lender, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate of a
Responsible Officer of the Parent (i) to the effect that no Default has occurred
and is continuing (or, if any Default has occurred and is continuing, describing
the same in reasonable detail and describing the action that the Obligors have
has taken or propose to take with respect thereto) and (ii) setting forth in
reasonable detail the computations
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necessary to determine whether the Obligors are in compliance with Sections
9.07(g), 9.08(i), 9.09, 9.10 and 9.11 hereof as of the end of the respective
quarterly fiscal period or fiscal year.
9.02 LITIGATION. The Parent (for itself and on behalf of each other
Obligor) will promptly give to each Lender notice of all legal or arbitral
proceedings, and of all proceedings by or before any governmental or regulatory
authority or agency, and any material development in respect of such legal or
other proceedings, affecting the Parent or any of its Subsidiaries, except
proceedings that could not reasonably be expected (either individually or in the
aggregate) to have a Material Adverse Effect. Without limiting the generality
of the foregoing, the Parent will give to each Lender notice of the assertion of
any Environmental Claim by any Person against, or with respect to the activities
of, the Parent or any of its Subsidiaries and notice of any alleged violation of
or non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation that
could not reasonably be expected (either individually or in the aggregate) to
have a Material Adverse Effect.
9.03 EXISTENCE, ETC. The Parent will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (PROVIDED that nothing in this
Section 9.03 shall prohibit any transaction expressly permitted under
Section 9.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements could reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for
any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained;
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(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative Agent,
during normal business hours, to examine, copy and make extracts from its
books and records, to inspect any of its Properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the case may be).
9.04 INSURANCE. The Parent will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations.
The Parent will in any event maintain (with respect to itself and each
of its Subsidiaries):
(1) CASUALTY INSURANCE -- insurance against loss or damage covering
all of the tangible real and personal Property and improvements of the
Parent and each of its Subsidiaries by reason of any Peril (as defined
below) in such amounts (subject to such deductibles as shall be
satisfactory to the Majority Lenders) as shall be reasonable and customary
and sufficient to avoid the insured named therein from becoming a
co-insurer of any loss under such policy but in any event in an amount
(i) in the case of fixed assets and equipment (other than vehicles), at
least equal to 100% of the actual replacement cost of such assets
(including, without limitation, foundation, footings and excavation costs),
subject to deductibles as aforesaid and (ii) in the case of inventory, not
less than the fair market value thereof, subject to deductibles as
aforesaid.
(2) AUTOMOBILE LIABILITY INSURANCE FOR BODILY INJURY AND PROPERTY
DAMAGE -- insurance against liability for bodily injury and property damage
in respect of all vehicles (whether owned, hired or rented by the Parent or
any of its
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Subsidiaries) at any time located at, or used in connection
with, its Properties or operations in such amounts as are then customary
for vehicles used in connection with similar Properties and businesses, but
in any event to the extent required by applicable law.
(3) COMPREHENSIVE GENERAL LIABILITY INSURANCE -- insurance against
claims for bodily injury, death or Property damage occurring on, in or
about the Properties (and adjoining streets, sidewalks and waterways) of
the Parent and its Subsidiaries, in such amounts as are then customary for
Property similar in use in the jurisdictions where such Properties are
located.
(4) WORKERS' COMPENSATION INSURANCE -- workers' compensation
insurance or a qualified self-insurance program (including, without
limitation, Employers' Liability Insurance) to the extent required by
applicable law.
(5) PRODUCT LIABILITY INSURANCE -- insurance against claims for
bodily injury, death or Property damage resulting from the use of products
sold by the Parent or any of its Subsidiaries in such amounts as are then
customarily maintained by responsible persons engaged in businesses similar
to that of the Parent and its Subsidiaries.
(6) BUSINESS INTERRUPTION INSURANCE -- insurance against loss of
operating income by reason of any Peril in such amounts as are consistent
with the coverages in place on the date hereof.
(7) OTHER INSURANCE -- such other insurance, including, without
limitation, War-Risk Insurance when and to the extent obtainable from the
United States Government, in each case as generally carried by owners of
similar Properties in the jurisdictions where such Properties are located,
in such amounts and against such risks as are then customary for Property
similar in use.
Such insurance shall be written by financially responsible companies selected by
the Parent and having an A. M. Best rating of "A-" or better and being in a
financial size category of XI or larger, or by other companies acceptable to the
Majority Lenders, and (other than workers' compensation) shall name the
Administrative Agent as loss payee (to the extent covering risk of loss or
damage to tangible property) and as an additional named insured as its interests
may appear (to the extent covering any other risk). Each policy referred to in
this Section 9.04
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shall provide that it will not be canceled or reduced, or allowed to lapse
without renewal, except after not less than 30 days' notice to the
Administrative Agent and shall also provide that the interests of the
Administrative Agent and the Lenders shall not be invalidated by any act or
negligence of the Parent or any Person having an interest in any Property
covered by the Mortgage nor by occupancy or use of any such Property for
purposes more hazardous than permitted by such policy nor by any foreclosure
or other proceedings relating to such Property. The Parent will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
On or before the Tender Offer Closing Date, the Parent will deliver to
the Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Parent hereunder setting forth the respective coverages,
limits of liability, carrier, policy number and period of coverage and showing
that such insurance will remain in effect through the October 31 falling at
least one month after the date hereof, subject only to the payment of premiums
as they become due (and attaching original copies of any policies with respect
to casualty insurance). On or before the Merger Date, the Parent will deliver
to the Administrative Agent certificates of insurance satisfactory to the
Administrative Agent evidencing the existence of all insurance required to be
maintained by the Parent hereunder with respect to Properties of CasTech and its
Subsidiaries, setting forth the respective coverages, limits of liability,
carrier, policy number and period of coverage and showing that such insurance
will remain in effect through the March 31 falling at least six months after the
date hereof, subject only to the payment of premiums as they become due (and
attaching original copies of any policies with respect to casualty insurance).
Thereafter, on each March 31 and October 31 in each year (commencing with the
first March 31 after the date hereof), the Parent will deliver to the
Administrative Agent certificates of insurance evidencing that all insurance
required to be maintained by the Parent hereunder will be in effect through the
following October 31 or March 31, as the case may be, subject only to the
payment of premiums as they become due. In addition, the Parent will not modify
any of the provisions of any policy with respect to casualty insurance without
delivering the original copy of the endorsement reflecting such modification to
the Administrative Agent accompanied by a written report of any firm of
independent insurance brokers of nationally recognized standing satisfactory to
the Administrative Agent, stating that, in their opinion, such policy (as so
modified) adequately protects the interests of the Lenders and the
Administrative
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Agent, is in compliance with the provisions of this Section 9.04, and is
comparable in all respects with insurance carried by responsible owners and
operators of Properties similar to those covered by the Mortgages. The
Parent will not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required by this Section 9.04
unless the Administrative Agent is the named insured thereunder, with loss
payable as provided herein. The Parent will immediately notify the
Administrative Agent whenever any such separate insurance is obtained and
shall deliver to the Administrative Agent the certificates evidencing the
same.
Without limiting the obligations of the Parent under the foregoing
provisions of this Section 9.04, in the event the Parent shall fail to maintain
in full force and effect insurance as required by the foregoing provisions of
this Section 9.04, then the Administrative Agent may, but shall have no
obligation so to do, procure insurance covering the interests of the Lenders and
the Administrative Agent in such amounts and against such risks as the
Administrative Agent (or the Majority Lenders) shall deem appropriate, and the
Parent shall reimburse the Administrative Agent in respect of any premiums paid
by the Administrative Agent in respect thereof.
For purposes hereof, the term "PERIL" shall mean, collectively, fire,
lightning, flood, windstorm, hail, earthquake, explosion, riot and civil
commotion, vandalism and malicious mischief, damage from aircraft, vehicles and
smoke and all other perils covered by the "all-risk" endorsement then in use in
the jurisdictions where the Properties of the Parent and its Subsidiaries are
located.
Notwithstanding the foregoing, the Parent and each of its Subsidiaries may carry
a portion of the insurance required hereunder through self-insurance
arrangements with a Subsidiary described in Section 9.08(h) hereof, PROVIDED
that such self-insurance is maintained only in amounts and in a manner that is
prudent and consistent with current market practices for such insurance coverage
of corporations engaged in the same or similar business similarly situated.
9.05 PROHIBITION OF FUNDAMENTAL CHANGES.
(a) The Parent will not, nor will it permit any of its Subsidiaries
to, enter into any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution)
other than the Merger.
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(b) The Parent will not, nor will it permit any of its Subsidiaries
to, acquire any business or Property from, or Capital Stock of, or be a party to
any acquisition of, any Person except for (i) the Acquisition, (ii) purchases of
inventory and other Property to be sold or used in the ordinary course of
business, (iii) Investments permitted under Section 9.08(g) hereof, (iv) Capital
Expenditures permitted under Section 9.11 hereof and (v) Permitted Reinvestment
Capital Expenditures.
(c) The Parent will not, nor will it permit any of its Subsidiaries
to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or
a series of transactions, any part of its business or Property, whether now
owned or hereafter acquired, including, without limitation, Receivables and
leasehold interests, but excluding:
(i) obsolete or worn-out Property, tools or equipment no longer used
or useful in its business so long as the amount thereof sold in any single
fiscal year by the Parent and its Subsidiaries shall not have a fair market
value in excess of $750,000; and
(ii) any inventory or other Property sold or disposed of in the
ordinary course of business and on ordinary business terms;
(iii) (x) Receivables Sales pursuant to Permitted Receivables
Financings and (y) sales or transfers of Receivables and Related Assets for
purposes of collection in the ordinary course of business and consistent
with past practices;
(iv) other sales of Property for fair market value (as reasonably
determined by the Parent) for cash in an aggregate amount not exceeding
$2,000,000 in any fiscal year of the Parent, so long as the Net Available
Proceeds thereof are reinvested in replacement assets as provided in
Section 2.10(b)(2) hereof; and
(v) prior to the Merger Date, the CasTech Shares purchased by the
Parent or New CALC in connection with the Acquisition to the extent sold
for fair value in cash and such cash proceeds are deposited in the
Commonwealth Collateral Account and held therein until payment in full of
the Loans.
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(d) Notwithstanding the foregoing provisions of this Section 9.05:
(i) any Subsidiary of the Parent may be merged or consolidated with
or into: (x) the Parent if the Parent shall be the continuing or surviving
corporation or (y) any other such Subsidiary; PROVIDED that (1) if any such
transaction shall be between a Subsidiary and a Wholly Owned Subsidiary,
the Wholly Owned Subsidiary shall be the continuing or surviving
corporation and (2) that if any such transaction shall be between a
Subsidiary Guarantor and a Subsidiary not a Subsidiary Guarantor, and such
Subsidiary Guarantor is not the continuing or surviving corporation, then
the continuing or surviving corporation shall have assumed all of the
obligations of such Subsidiary Guarantor hereunder and under the other
Credit Documents; and
(ii) any Subsidiary of the Parent may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Parent or a Wholly Owned Subsidiary of the Parent;
PROVIDED that if any such sale is by a Subsidiary Guarantor to a Subsidiary
of the Parent not a Subsidiary Guarantor, then such Subsidiary shall have
assumed all of the obligations of such Subsidiary Guarantor hereunder and
under the other Credit Documents.
9.06 LIMITATION ON LIENS. The Parent will not, nor will it permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of
Schedule V or in Part B of Schedule VI hereto (excluding, however,
following the making of the initial Loans hereunder, Liens securing
Indebtedness to be repaid with the proceeds of such Loans, as indicated on
said Schedules V and VI);
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is not
material with respect to it or its financial condition, adequate reserves
with respect thereto are maintained on the books of the Parent or the
affected Subsidiaries, as the case may be, in accordance with GAAP;
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(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in
good faith and by appropriate proceedings and Liens securing judgments but
only to the extent for an amount and for a period not resulting in an Event
of Default under Section 10(h) hereof;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property or minor imperfections in title thereto that, in the
aggregate, are not material in amount, and that do not in any case
materially interfere with the ordinary conduct of the business of the
Parent or any of its Subsidiaries;
(h) Liens on Property of any corporation that becomes a Subsidiary of
the Parent after the date hereof, PROVIDED that such Liens are in existence
at the time such corporation becomes a Subsidiary of the Parent and were
not created in anticipation thereof;
(i) Liens upon real and/or tangible personal Property acquired after
the date hereof (by purchase, construction or otherwise) by the Parent or
any of its Subsidiaries, each of which Liens either (A) existed on such
Property before the time of its acquisition and was not created in
anticipation thereof or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost (including the cost of construction) of such Property; PROVIDED that
(i) no such Lien shall extend to or cover any Property of the Parent or
such Subsidiary other than the Property so acquired and improvements
thereon and (ii) the principal amount of Indebtedness secured by any such
Lien shall at no time exceed 80% of the fair market value (as determined in
good
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faith by a Responsible Officer of the Parent) of such Property at the
time it was acquired (by purchase, construction or otherwise);
(j) additional Liens upon real and/or personal Property created after
the date hereof, PROVIDED that the aggregate Indebtedness secured thereby
and incurred on and after the date hereof shall not exceed (i) at any time
prior to the General Trigger Date, $1,000,000 in the aggregate at any one
time outstanding and (ii) at any time on or after the General Trigger Date,
$5,000,000 in the aggregate at any one time outstanding;
(k) Liens upon Receivables and Related Assets to secure obligations
under Permitted Receivables Financings; and
(l) prior to the Merger Date, Liens on the CasTech Shares purchased
by the Parent or New CALC in connection with the Acquisition.
9.07 INDEBTEDNESS. The Parent will not, nor will it permit any of
its Subsidiaries to, create, incur or suffer to exist any Indebtedness except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness outstanding on the date hereof and listed in Part A
of Schedule V hereto or in Part A of Schedule VI hereto (excluding,
however, following the making of the initial Loans hereunder, the
Indebtedness to be repaid with the proceeds of such Loans, as indicated on
said Schedules V and VI);
(c) (i) Indebtedness of the Parent in respect of the Senior
Subordinated Debt in an aggregate original principal amount not exceeding
$125,000,000, and (ii) subordinated Guarantees of such Indebtedness by
Subsidiaries of the Parent pursuant to the Senior Subordinated Debt
Documents;
(d) Indebtedness of Subsidiaries of the Parent to the Parent or to
other Subsidiaries of the Parent (other than a Subsidiary described in
Section 9.08(h) hereof);
(e) Indebtedness in an aggregate amount not exceeding $7,000,000
owing by the Parent and/or certain of its Subsidiaries to Lockheed Martin
Corporation pursuant to
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agreements relating to the reimbursement for certain environmental costs;
(f) obligations of the Parent and its Subsidiaries under Permitted
Receivables Financings;
(g) additional Indebtedness of Subsidiaries of the Parent incurred
after the Merger Date (including, without limitation, Capital Lease
Obligations and other Indebtedness secured by Liens permitted under Section
9.06(i) or 9.06(j) hereof) up to but not exceeding (i) at any time prior to
the General Trigger Date, $1,000,000 in the aggregate at any one time
outstanding and (ii) at any time on or after the General Trigger Date,
$5,000,000 in the aggregate at any one time outstanding; and
(h) obligations in respect of Interest Rate Protection Agreements and
Commodity Hedge Agreements (to the extent the same constitute Indebtedness)
permitted under Section 9.08(e) hereof.
9.08 INVESTMENTS. The Parent will not, nor will it permit any of its
Subsidiaries to, make or permit to remain outstanding any Investments except:
(a) Investments outstanding on the date hereof and identified in Part
C of Schedule XIII hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Parent in the Borrowers;
(e) (i) over-the-counter Interest Rate Protection Agreements with one
or more of the Lenders (and/or with a bank or other financial institution
having capital, surplus and undivided profits of at least $500,000,000) as
to an aggregate notional principal amount not at any time exceeding
$150,000,000; and (ii) Commodity Hedge Agreements to the extent permitted
under Section 9.21 hereof;
(f) loans or advances made to employees of the Parent or any of its
Subsidiaries in the ordinary course of business and in furtherance of the
Parent's business in an aggregate amount not exceeding $4,000,000 at any
time outstanding;
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(g) in the event the Parent or any of its Subsidiaries maintains any
unfunded deferred compensation plan (within the meaning of Title I of
ERISA), to the extent benefits under such plan are defined by reference to
specific investments, whether at the participant's or the beneficiaries'
election or otherwise, any Investment in such a specific investment;
(h) Investments not to exceed $3,000,000 in the aggregate in one or
more Subsidiaries of the Parent organized solely for the purpose of
permitting the Parent and its Subsidiaries to self-insure in a usual and
customary manner consistent with current market practices for self-
insurance programs of corporations engaged in the same or similar business
similarly situated;
(i) additional Investments up to but not exceeding $5,000,000 in the
aggregate; and
(j) Investments constituting capitalization of Securitization
Subsidiaries consistent with normal practice for transactions of such type.
9.09 DIVIDEND PAYMENTS. The Parent will not, nor will it permit any
of its Subsidiaries to, declare or make any Dividend Payment at any time;
PROVIDED that the Parent may:
(a) at any time after the Merger Date, declare and make Dividend
Payments in cash, subject to the satisfaction of each of the following
conditions on the date of such Dividend Payment and after giving effect
thereto:
(i) no Default shall have occurred and be continuing;
(ii) the aggregate amount of Dividend Payments made in the
form of cash dividends on the Capital Stock of the Parent during the
then-current fiscal quarter of the Parent shall not exceed $600,000;
and
(iii) the Parent shall have delivered to each Lender, at least
10 Business Days (but not more than 20 Business Days) prior to the
date of the proposed Dividend Payment, a certificate of a Responsible
Officer of the Parent setting forth computations in reasonable detail
demonstrating satisfaction of the foregoing conditions as at the date
of such certificate;
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(b) at any time after the Merger Date, make Stock Repurchases in
cash, subject to the satisfaction of each of the following conditions on
the date of such Stock Repurchase and after giving effect thereto:
(i) no Default shall have occurred and be continuing;
(ii) at any time prior to the General Trigger Date, the
aggregate amount of Stock Repurchases made in any twelve-month period
shall not exceed $3,000,000; and
(iii) at any time from and after the General Trigger Date, the
aggregate amount of Stock Repurchases made in any twelve-month period
shall not exceed $8,000,000; and
(c) at any time after the Merger Date, make Employee Stock
Repurchases in cash, subject to the satisfaction of each of the following
conditions on the date of such Employee Stock Repurchase and after giving
effect thereto:
(i) no Default shall have occurred and be continuing; and
(ii) the aggregate amount of all Employee Stock Repurchases
made after the date hereof shall not exceed $6,000,000.
This Section 9.09 shall in any event not prohibit: (w) the consummation of the
Acquisition; (x) the payment of any dividend by the Parent within 60 days after
the date of declaration thereof if, at such date of declaration, such payment
would comply with the foregoing paragraph; (y) the redemption of any Stock
Purchase Rights issued under the Stockholder Protection Rights Agreement; and
(z) the payment of dividends by any Subsidiary of the Parent to the Parent or to
any other Subsidiary of the Parent.
9.10 CERTAIN FINANCIAL COVENANTS.
(a) LEVERAGE RATIOS.
(i) The Parent will not permit the Senior Leverage Ratio to exceed
the following respective ratios at any time during the following respective
periods:
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Period Ratio
------ -----
From and including the first
Delivery Date after the date
hereof through but excluding
the first Delivery Date after
December 31, 1996 3.70 to 1.00
From and including the first
Delivery Date after
December 31, 1996 through
but excluding the first
Delivery Date after
March 31, 1997 3.50 to 1.00
From and including the first
Delivery Date after
March 31, 1997 through
but excluding the first
Delivery Date after
June 30, 1997 3.00 to 1.00
From and including the first
Delivery Date after
June 30, 1997 through
but excluding the first
Delivery Date after
September 30, 1997 2.80 to 1.00
From and including the first
Delivery Date after
September 30, 1997 through
but excluding the first
Delivery Date after
December 31, 1997 2.70 to 1.00
From and including the first
Delivery Date after
December 31, 1997 through
but excluding the first
Delivery Date after
March 31, 1998 2.50 to 1.00
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From and including the first
Delivery Date after
March 31, 1998 through
but excluding the first
Delivery Date after
June 30, 1998 2.40 to 1.00
From and including the first
Delivery Date after
June 30, 1998 through
but excluding the first
Delivery Date after
September 30, 1998 2.30 to 1.00
From and after the first
Delivery Date after
September 30, 1998 2.20 to 1.00
(ii) The Parent will not permit the Total Leverage Ratio to exceed
the following respective ratios at any time during the following respective
periods:
Period Ratio
------- -----
From and including the first
Delivery Date after the date
hereof through but excluding
the first Delivery Date after
December 31, 1996 5.50 to 1.00
From and including the first
Delivery Date after
December 31, 1996 through
but excluding the first
Delivery Date after
March 31, 1997 5.20 to 1.00
From and including the first
Delivery Date after
March 31, 1997 through
but excluding the first
Delivery Date after
June 30, 1997 4.40 to 1.00
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From and including the first
Delivery Date after
June 30, 1997 through
but excluding the first
Delivery Date after
September 30, 1997 4.20 to 1.00
From and including the first
Delivery Date after
September 30, 1997 through
but excluding the first
Delivery Date after
December 31, 1997 4.00 to 1.00
From and including the first
Delivery Date after
December 31, 1997 through
but excluding the first
Delivery Date after
March 31, 1998 3.80 to 1.00
From and including the first
Delivery Date after
March 31, 1998 through
but excluding the first
Delivery Date after
June 30, 1998 3.60 to 1.00
From and including the first
Delivery Date after
June 30, 1998 through
but excluding the first
Delivery Date after
September 30, 1998 3.40 to 1.00
From and including the first
Delivery Date after
September 30, 1998 through
but excluding the first
Delivery Date after
December 31, 1998 3.30 to 1.00
From and after the first
Delivery Date after
December 31, 1998 3.30 to 1.00
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(b) INTEREST COVERAGE RATIOS.
(i) The Parent will not permit the Senior Interest Coverage Ratio to
be less than the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From the date hereof
through December 31, 1996 3.80 to 1.00
From January 1, 1997
through March 31, 1997 3.80 to 1.00
From April 1, 1997
through June 30, 1997 4.50 to 1.00
From July 1, 1997
through September 30, 1997 4.80 to 1.00
From October 1, 1997
through December 31, 1997 4.90 to 1.00
From January 1, 1998
through March 31, 1998 5.00 to 1.00
From April 1, 1998
through June 30, 1998 5.30 to 1.00
From July 1, 1998
through September 30, 1998 5.60 to 1.00
From October 1, 1998
through December 31, 1998 5.80 to 1.00
From January 1, 1999
and at all times thereafter 5.80 to 1.00
(ii) The Parent will not permit the Total Interest Coverage Ratio to
be less than the following respective ratios at any time during the following
respective periods:
Period Ratio
------ -----
From the date hereof
through December 31, 1996 2.20 to 1.00
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From January 1, 1997
through March 31, 1997 2.20 to 1.00
From April 1, 1997
through June 30, 1997 2.60 to 1.00
From July 1, 1997
through September 30, 1997 2.80 to 1.00
From October 1, 1997
through December 31, 1997 2.80 to 1.00
From January 1, 1998
through March 31, 1998 2.90 to 1.00
From April 1, 1998
through June 30, 1998 3.00 to 1.00
From July 1, 1998
through September 30, 1998 3.20 to 1.00
From October 1, 1998
through December 31, 1998 3.30 to 1.00
From January 1, 1999
and at all times thereafter 3.30 to 1.00
(c) MINIMUM TTM EBITDA. The Parent will not permit TTM EBITDA as at
any day during the following respective periods to be less than the following
respective amounts:
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Period Amount
------ ------
From the date hereof
through December 31, 1996 $ 70,000,000
From January 1, 1997
through March 31, 1997 $ 75,000,000
From April 1, 1997
through June 30, 1997 $ 80,000,000
From July 1, 1997
through September 30, 1997 $ 85,000,000
From October 1, 1997
through December 31, 1997 $ 90,000,000
From January 1, 1998
and at all times thereafter $100,000,000
(d) FIXED CHARGES RATIO. The Parent will not permit the Fixed
Charges Ratio to be less than the following respective ratios at any time during
the following respective periods:
Period Ratio
------ -----
From the date hereof
through December 31, 1996 1.70 to 1.00
From January 1, 1997
through March 31, 1997 1.80 to 1.00
From April 1, 1997
through June 30, 1997 1.80 to 1.00
From July 1, 1997
through September 30, 1997 1.80 to 1.00
From October 1, 1997
through December 31, 1997 1.80 to 1.00
From January 1, 1998
and at all times thereafter 1.90 to 1.00
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9.11 CAPITAL EXPENDITURES. The Parent will not permit the aggregate
amount of Capital Expenditures (other than Permitted Reinvestment Capital
Expenditures) by the Parent and its Subsidiaries to exceed the following
respective amounts for the following respective periods:
Period Amount
------ ------
From the date hereof
through December 31, 1996 $ 8,000,000
Each fiscal year of the Parent
ending thereafter $38,000,000
If the aggregate amount of Capital Expenditures for any period set forth in the
schedule above shall be less than the amount set forth opposite such period in
the schedule above, then the shortfall shall be added to the amount of Capital
Expenditures permitted for the immediately succeeding (but not any other) period
and, for purposes hereof, the amount of Capital Expenditures made during any
period shall be deemed to have been made first from the permitted amount for
such period set forth in the schedule above and last from the amount of any
carryover from any previous period.
9.12 INTEREST RATE PROTECTION AGREEMENTS. The Parent will within 90
days of the Initial Borrowing Date enter into, and thereafter maintain in full
force and effect, one or more over-the-counter Interest Rate Protection
Agreements with one or more of the Lenders (and/or with a bank or other
financial institution having capital, surplus and undivided profits of at least
$500,000,000), that effectively enables the Borrowers (in a manner satisfactory
to the Administrative Agent) to protect itself against three-month London
interbank offered rates exceeding 8% per annum as to a notional principal amount
at least equal to $95,000,000 initially (which amount may be subject to
amortization) for a period of at least 3 years measured from the Initial
Borrowing Date.
9.13 SUBORDINATED INDEBTEDNESS. The Parent will not, nor will it
permit any of its Subsidiaries to, purchase, redeem, retire or otherwise acquire
for value, or set apart any money for a sinking, defeasance or other analogous
fund for the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Subordinated Indebtedness, except for
regularly scheduled payments or prepayments of principal and interest in respect
thereof required
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pursuant to the instruments evidencing such Subordinated Indebtedness.
9.14 LINES OF BUSINESS. The Parent will not, nor will it permit any
of its Subsidiaries to, engage to any substantial extent in any line or lines of
business activity other than the Aluminum Business.
9.15 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted by
this Agreement, the Parent will not, nor will it permit any of its Subsidiaries
to, directly or indirectly:
(a) make any Investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate;
(c) merge into or consolidate with or purchase or acquire Property
from an Affiliate; or
(d) enter into any other transaction directly or indirectly with or
for the benefit of an Affiliate (including, without limitation, Guarantees
and assumptions of obligations of an Affiliate);
PROVIDED that (i) any Affiliate who is an individual may serve as a director,
officer or employee of the Parent or any of its Subsidiaries and receive
reasonable compensation for his or her services in such capacity, (ii) the
Parent and its Subsidiaries may enter into transactions (other than extensions
of credit by the Parent or any of its Subsidiaries to an Affiliate) providing
for the leasing of Property, the rendering or receipt of services or the
purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Parent and its Subsidiaries as the monetary
or business consideration that would obtain in a comparable transaction with a
Person not an Affiliate and (iii) transactions in connection with a Permitted
Receivables Financing.
9.16 USE OF PROCEEDS. The Borrowers will use the proceeds of the
Loans hereunder solely as follows:
(a) The proceeds of the Tender Offer Term Loans will be used solely
(i) to make loans to New CALC pursuant to the New CALC Note Documents to
fund the purchase by New CALC of the CasTech Shares pursuant to the Tender
Offer, (ii) to
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refinance existing Indebtedness of the Parent and its
Subsidiaries and (iii) to pay certain transaction fees and expenses.
(b) The proceeds of the Tender Offer CALI Revolving Credit Loans will
be used solely (i) to make loans to New CALC pursuant to the New CALC Note
Documents to fund the purchase by New CALC of the CasTech Shares pursuant
to the Tender Offer, (ii) to refinance existing Indebtedness of the Parent
and its Subsidiaries and (iii) to pay certain transaction fees and expenses
and, after the Tender Offer Closing Date, to finance the ongoing working
capital requirements and other general corporate purposes of the Borrowers
and their respective Subsidiaries.
(c) The proceeds of the Tender Offer CasTech Revolving Credit Loans
will be used solely (i) to refinance existing Indebtedness of CasTech and
its Subsidiaries and (ii) on and after the Tender Offer Closing Date, to
finance the ongoing working capital requirements and other general
corporate purposes of CasTech and its Subsidiaries.
(d) The proceeds of the Post-Merger Term Loans will be used solely to
refinance Tender Offer Term Loans and to fund other costs of the
Acquisition payable on the Merger Date.
(e) The proceeds of the Post-Merger Revolving Credit Loans will be
used solely to refinance Tender Offer Term Loans and to fund other costs of
the Acquisition payable on the Merger Date and, after the Merger Date, to
finance the ongoing working capital requirements and other general
corporate purposes of the Borrowers and their respective Subsidiaries.
The Borrowers will use the proceeds of the Loans in compliance with all
applicable legal and regulatory requirements, including, without limitation,
Regulations G, T, U and X and the Securities Act of 1933 and the Securities
Exchange Act of 1934 and the regulations thereunder; PROVIDED that neither the
Administrative Agent nor any Lender shall have any responsibility as to the use
of any of such proceeds.
9.17 CERTAIN OBLIGATIONS RESPECTING SUBSIDIARIES.
(a) SUBSIDIARY GUARANTORS. In the event that the Parent or any of
its Subsidiaries shall form or acquire any new Subsidiary (other than a
Securitization Subsidiary) that the Parent or the respective Subsidiary
anticipates will not be an
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Immaterial Subsidiary (or, in the event that any Immaterial Subsidiary (other
than a Securitization Subsidiary) shall cease to be an Immaterial
Subsidiary), the Parent will cause such new Subsidiary (or such Immaterial
Subsidiary that ceases to be an Immaterial Subsidiary) to become a
"Subsidiary Guarantor" (and, thereby, an "Obligor") hereunder, and to pledge
and grant a security interest in its Property pursuant to the Security
Documents to the Administrative Agent for the benefit of the Lenders,
pursuant to a written instrument in form and substance satisfactory to the
Administrative Agent and to deliver such proof of corporate action,
incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by each "Obligor" pursuant to Section 7.01
hereof upon the Tender Offer Closing Date or as the Administrative Agent
shall have requested.
(b) OWNERSHIP OF SUBSIDIARIES. The Parent will, and will cause each
of its Subsidiaries to, take such action from time to time as shall be necessary
to ensure that each of its Subsidiaries is a Wholly Owned Subsidiary. In the
event that any additional shares of stock shall be issued by any Subsidiary, the
respective Obligor agrees forthwith to deliver to the Administrative Agent
pursuant to the Security Documents the certificates evidencing such shares of
stock, accompanied by undated stock powers executed in blank and to take such
other action as the Administrative Agent shall request to perfect the security
interest created therein pursuant to the Security Documents.
(c) CERTAIN RESTRICTIONS. Other than pursuant to the Senior
Subordinated Debt Documents or in connection with transactions related to a
Permitted Receivables Financing, the Obligors will not permit any of their
respective Subsidiaries to enter into, after the date hereof, any indenture,
agreement, instrument or other arrangement that, directly or indirectly,
prohibits or restrains, or has the effect of prohibiting or restraining, or
imposes materially adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of loans, advances or Investments or the sale, assignment, transfer
or other disposition of Property.
9.18 CERTAIN POST-CLOSING REAL ESTATE MATTERS. The Parent shall, and
shall cause each of its Subsidiaries to, execute, deliver and record such
Mortgages, agreements, documents and other instruments, and to take such other
action (including, without limitation, obtaining title insurance policies,
surveys, certificates of occupancy, opinions of local counsel and
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necessary third party consents), as the Administrative Agent shall request in
order to grant to the Administrative Agent, on or prior to October 30, 1996,
perfected first priority Liens on each of the Properties identified on
Schedules XV and XVI hereto to the extent the Administrative Agent did not
require the same to be delivered on or prior to the Tender Offer Closing Date
or the Merger Date pursuant to Sections 7.01(m) and 7.03(d) hereof,
respectively.
9.19 MODIFICATIONS OF CERTAIN DOCUMENTS.
(a) No Obligor will consent to any modification, supplement or waiver
of any of the provisions of the Acquisition Documents, the New CALC Note
Documents, the Senior Subordinated Debt Documents, any other documents providing
for or relating to Subordinated Indebtedness, or terminate the Merger Agreement,
without the prior approval of the Majority Lenders.
(b) No Obligor will take any action to modify or supplement its
articles of incorporation or the articles of incorporation of any of its
Subsidiaries, other than modifications that do not adversely affect the
interests of the Lenders, without the prior approval of the Majority Lenders.
9.20 CONSUMMATION OF THE MERGER. The Parent will cause the Merger to
be consummated as promptly as practicable after the Tender Offer Closing Date
but in any event not later than March 19, 1997. Without limiting the foregoing,
if New CALC shall acquire at least 90% of the issued and outstanding CasTech
Shares, the Parent and New CALC will effect the Merger without a meeting of the
stockholders of CasTech within five days of the Tender Offer Closing Date.
9.21 COMMODITY HEDGING ACTIVITIES. The Parent shall not, and shall
not permit any of its Subsidiaries to, enter into any commodity futures
contract, commodity option or other similar agreement or arrangement
(collectively, "COMMODITY HEDGE AGREEMENTS"), except the Parent and its
Subsidiaries may enter into Hedge Agreements designed to protect the Parent and
its Subsidiaries against fluctuations in the price of aluminum and commodities
used in the Aluminum Business and prices associated with customer forward sales
contracts and purchase commitments, so long as the same (a) is consistent with
the relevant Obligor's past practice or then-current industry practice in the
markets in which such Obligor operates and (b) is in accordance with the
Parent's "Price Risk Program: Briefing Summary", as the same may be amended
from time to time.
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9.22 AFTER-ACQUIRED REAL ESTATE. If any Obligor or any of its
Subsidiaries shall acquire any real property, or shall lease any real property
that is material to the operation of its business, after the Initial Borrowing
Date, other than any real property encumbered by Liens permitted by Section
9.06(i) hereof, such Obligor or such Subsidiary, as the case may be, shall
promptly execute a Mortgage covering such real property, together with such
surveys, title insurance policies and endorsements, certificates of occupancy
and such other agreements, estoppels and consents (including agreements with
lessors) as the Administrative Agent may request, and shall deliver opinions of
local counsel and other documents as is consistent with those delivered with
respect to each Mortgage pursuant to Section 7.01(m) hereof upon the Tender
Offer Closing Date or as the Administrative Agent shall have requested.
9.23 ACTIVITIES OF THE PARENT AND NEW CALC.
(a) The Parent (i) will at all times own, beneficially and of record,
all of the issued and outstanding Capital Stock of each of CALI, New CALC and
(from and after the Merger Date) CasTech (PROVIDED that this Section 9.23(a)(i)
shall not prohibit any transaction expressly permitted under Section 9.05
hereof), (ii) will own no other Property (other than cash and Permitted
Investments, other Property incidental to its business as a holding company and
Capital Stock of its Subsidiaries), (iii) will have no Indebtedness (other than
Indebtedness hereunder and Indebtedness in respect of Subordinated Indebtedness
permitted under Section 9.07 hereof), (iv) will have no operations other than de
minimis operations incidental to its business as a holding company and (v) in
furtherance of the foregoing will not make any expenditures or incur any
liabilities other than those consistent with and reasonably necessary in the
conduct of the business of the Parent as contemplated by this paragraph (a).
(b) Prior to the Merger Date, New CALC (i) will own no Property
(other than CasTech Shares, cash and Permitted Investments, other Property
incidental to its ownership of CasTech Shares), (ii) will have no Indebtedness
(other than Indebtedness hereunder, Indebtedness under the New CALC Notes and
obligations under the Acquisition Documents) and (iii) will have no operations
other than de minimis operations incidental to its activities in connection with
the Acquisition.
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Section 10. EVENTS OF DEFAULT. If one or more of the following
events (herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) Any Obligor shall: (i) default in the payment of any principal
of any Loan or any Reimbursement Obligation when due (whether at stated
maturity or at mandatory or optional prepayment); or (ii) default in the
payment of any interest on any Loan, any fee or any other amount payable by
it hereunder or under any other Credit Document when due and such default
shall have continued unremedied for three or more days; or
(b) The Parent or any of its Subsidiaries (herein collectively called
the "RELEVANT PARTIES") shall default in the payment when due of any
principal of or interest on any of its other Indebtedness having a
principal amount of $1,000,000 or more individually or $2,000,000 or
more for all Relevant Parties and their Subsidiaries in the aggregate; or
any event specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness (other than any such
Indebtedness owed to any Lender or any affiliate of any Lender if such
event shall relate solely to a restriction on Margin Stock (a "MARGIN STOCK
EVENT")) shall occur if the effect of such event is to cause, or (with the
giving of any notice or the lapse of time or both) to permit the holder or
holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, such Indebtedness to become due, or to be
prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity or to have the interest rate
thereon reset to a level so that securities evidencing such Indebtedness
trade at a level specified in relation to the par value thereof; or any
Relevant Party shall default in the payment when due of any individual
amount of $1,000,000 or more (or of amounts aggregating $2,000,000 or more)
under any Interest Rate Protection Agreement; or any event (other than a
Margin Stock Event) specified in any Interest Rate Protection Agreement
shall occur if the effect of such event is to cause, or (with the giving of
any notice or the lapse of time or both) to permit, any individual
termination or liquidation payment in an amount of $1,000,000 or more (or
any termination or liquidation payments aggregating $2,000,000 or more) to
become due; or
(c) Any representation, warranty or certification made or deemed made
herein or in any other Basic Document (or in
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any modification or supplement hereto or thereto) by any Obligor
party thereto, or any certificate furnished to any Lender or the
Administrative Agent pursuant to the provisions hereof or thereof,
shall prove to have been false or misleading as of the time made or
furnished in any material respect; or
(d) The Parent or any of the other Obligors (as applicable) shall
default in the performance of any of its obligations under any of Sections
9.01(f), 9.01(h), 9.05, 9.06, 9.07, 9.08, 9.09, 9.10, 9.11, 9.13, 9.15,
9.17(b), 9.18, 9.19, 9.20, 9.22 or 9.23 hereof or any Obligor shall default
in the performance of any of its obligations under Section 4.02 or 5.02 of
the Security Agreement, Section 4.02 or 5.02 of the Pledge Agreement,
Section 4.02 or 5.02 of the CasTech Pledge and Security Agreement or any
provisions of any Mortgage; or any Obligor shall default in the performance
of any of its other obligations in this Agreement or any other Credit
Document and such default shall continue unremedied for a period of thirty
or more days after notice thereof to the Parent by the Administrative Agent
or any Lender (through the Administrative Agent); or
(e) Any Relevant Party shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) Any Relevant Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial part
of its Property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy Code,
(iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts,
(v) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the affected Relevant Party, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or
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winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a receiver, custodian, trustee, examiner,
liquidator or the like of such Relevant Party or of all or any substantial
part of its Property or (iii) similar relief in respect of such Relevant
Party under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed and
in effect, for a period of 60 or more days; or an order for relief against
any Relevant Party shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money of
$250,000 or more in the aggregate (exclusive of judgment amounts fully
covered by insurance where the insurer has admitted liability in respect of
such judgment) or of $500,000 or more in the aggregate (regardless of
insurance coverage) shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against any Relevant Party
and the same shall not be paid discharged (or provision shall not be made
for such payment or discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and such Relevant
Party shall not, within said period of 30 days, or such longer period
during which execution of the same shall have been stayed, appeal therefrom
and cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions specified in said Section 9.01(e), any Obligor or any ERISA
Affiliate shall incur or in the opinion of the Majority Lenders shall be
reasonably likely to incur a liability to a Plan, a Multiemployer Plan or
the PBGC (or any combination of the foregoing) that, in the reasonable
determination of the Majority Lenders, could reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect; or
(j) There shall have been asserted against the Parent or any of its
Subsidiaries, or any predecessor in interest thereof, an Environmental
Claim that, in the judgment of the Majority Lenders is reasonably likely to
be determined adversely to the Parent or any of its Subsidiaries, and the
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amount thereof (either individually or in the aggregate) is reasonably
likely to have a Material Adverse Effect (insofar as such amount is payable
by the Parent or any of its Subsidiaries, but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor or the amount of funded
reserves which have been established that do not cause, or are not
reasonably likely to cause, a breach of any other provision of this
Agreement); or
(k) The Liens created by the Security Documents shall at any time not
(other than by reason of the action or inaction by the Administrative
Agent) constitute a valid and perfected Lien on the collateral intended to
be covered thereby (to the extent perfection by filing, registration,
recordation or possession is required herein or therein) in favor of the
Administrative Agent, free and clear of all other Liens (other than Liens
permitted under Section 9.06 hereof or under the respective Security
Documents), or, except for expiration in accordance with its terms, any of
the Security Documents shall for whatever reason be terminated or cease to
be in full force and effect, or the enforceability thereof shall be
contested by any Obligor;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10 with respect to any Obligor, the
Administrative Agent may, by notice to the Parent, terminate the Commitments
(including the Swingline Commitment) and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans (including all Swingline
Loans), the Reimbursement Obligations and all other amounts payable by the
Obligors hereunder and under the Notes and the other Credit Documents
(including, without limitation, any amounts payable under Section 5.05 or 5.06
hereof) to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor; and (2) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Section 10 with respect to any Obligor, the
Commitments (including the Swingline Commitment) shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans (including all Swingline Loans), the Reimbursement
Obligations and all other amounts payable by the Obligors hereunder and under
the Notes and the other Credit Documents (including, without limitation, any
amounts payable under Section 5.05 or 5.06 hereof) shall automatically become
immediately due and payable without
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presentment, demand, protest or other formalities of any kind, all of which
are hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Administrative Agent has declared the principal amount
then outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Obligors hereunder and under the Notes to be due
and payable), each Revolving Credit Borrower agrees that it shall, if requested
by the Administrative Agent or the Majority Revolving Credit Lenders through the
Administrative Agent (and, in the case of any Event of Default referred to in
clause (f) or (g) of this Section 10 with respect to such Borrower, forthwith,
without any demand or the taking of any other action by the Administrative Agent
or such Lenders) provide cover for the Letter of Credit Liabilities under such
Borrower's Revolving Credit Facility by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit under such Facility, which funds shall be
held by the Administrative Agent in one or more of the Collateral Accounts as
collateral security in the first instance for the Letter of Credit Liabilities
under such Facility and be subject to withdrawal only as therein provided.
Section 11. THE ADMINISTRATIVE AGENT.
11.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Credit Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 hereof
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Credit Documents, and shall
not by reason of this Agreement or any other Credit Document be a trustee
for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Credit Document,
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or in any certificate or other document referred to or provided
for in, or received by any of them under, this Agreement or
any other Credit Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Note or
any other Credit Document or any other document referred to or provided for
herein or therein or for any failure by the Parent or any other Person to
perform any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Credit Document; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Credit Document or under any other
document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or
willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Parent to
such assignment or transfer (to the extent required by Section 12.06(b) hereof).
11.02 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or any other Credit Document, the Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Majority
Lenders or, if provided herein, in accordance with the instructions given by all
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of the Lenders as is required in such circumstance, and such instructions of
such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders.
11.03 DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Parent specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders,
PROVIDED that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the Lenders except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Majority
Lenders or all of the Lenders.
11.04 RIGHTS AS A LENDER. With respect to its Commitments and the
Loans made by it, NatWest (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. NatWest (and any successor acting as Administrative Agent)
and its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Obligors (and any of their
Subsidiaries or Affiliates) as if it were not acting as the Administrative
Agent, and NatWest (and any such successor) and its affiliates may accept fees
and other consideration from the Obligors for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
11.05 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Parent under said Section 12.03)
ratably in accordance with the aggregate principal amount of the Loans and
Reimbursement Obligations held by the Lenders (or, if no Loans or Reimbursement
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Obligations are at the time outstanding, ratably in accordance with their
respective Notes), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent (including by any Lender) arising out of or by
reason of any investigation in or in any way relating to or arising out of this
Agreement or any other Credit Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Borrowers are
obligated to pay under Section 12.03 hereof, but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents, PROVIDED that no Lender
shall be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
11.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender agrees that it has, independently and without reliance on the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Parent, CALI, New CALC, CasTech and their respective Subsidiaries and made its
own decision to enter into this Agreement and that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or under any other Credit Document. The Administrative
Agent shall not be required to keep itself informed as to the performance or
observance by any Obligor of this Agreement or any of the other Credit Documents
or any other document referred to or provided for herein or therein or to
inspect the Properties or books of the Parent, CALI, New CALC, CasTech or any of
their respective Subsidiaries. Except for notices, reports and other documents
and information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or under the Security Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Parent, CALI, New CALC, CasTech or any of their
respective Subsidiaries (or any of their affiliates) that may come into the
possession of the Administrative Agent or any of its affiliates.
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11.07 FAILURE TO ACT. Except for action expressly required of the
Administrative Agent hereunder and under the other Credit Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Parent and the Borrowers, and the Administrative Agent
may be removed at any time with or without cause by the Majority Lenders. Upon
any such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent's giving
of notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, that shall be a bank that
has an office in New York, New York with a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Section 11
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
11.09 CONSENTS UNDER OTHER CREDIT DOCUMENTS. Except as otherwise
provided in Section 12.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Credit Documents, PROVIDED that, without the prior consent of each Lender,
the Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Security Document
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providing for collateral security, agree to additional obligations being
secured by such collateral security (unless the Lien for such additional
obligations shall be junior to the Lien in favor of the other obligations
secured by such Security Document, in which event the Administrative Agent
may consent to such junior Lien provided that it obtains the consent of the
Majority Lenders thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents or
release any guarantor under any Security Document from its guarantee
obligations thereunder, except that no such consent shall be required, and
the Administrative Agent is hereby authorized, to release any Lien covering
Property (and to release any such guarantor) that is the subject of either a
disposition of Property permitted hereunder (including, without limitation,
dispositions of Receivables and Related Assets pursuant to Permitted
Receivables Financings) or a disposition to which the Majority Lenders have
consented.
11.10 COLLATERAL SUB-AGENTS. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Commonwealth Pledge and Security Agreement and Section 4.03 of the CasTech
Pledge and Security Agreement, that, in the event it shall hold any Permitted
Investments referred to therein, such Permitted Investments shall be held in the
name and under the control of such Lender, and such Lender shall hold such
Permitted Investments as a collateral sub-agent for the Administrative Agent
thereunder. The Obligors by their execution and delivery of this Agreement
hereby consent to the foregoing.
Section 12. MISCELLANEOUS.
12.01 WAIVER. No failure on the part of the Administrative Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
12.02 NOTICES. All notices, requests and other communications
provided for herein and under the Security Documents (including, without
limitation, any modifications of, or waivers, requests or consents under, this
Agreement) shall be
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given or made in writing (including, without limitation, by telecopy)
delivered to the intended recipient:
(a) in the case of each of the Obligors, at the "Address for Notices"
specified below the name of the Parent on the signature pages hereof;
(b) in the case of the Administrative Agent, at the "Address for
Notices" specified below the name of the Administrative Agent on the
signature pages hereof; and
(c) in the case of any Lender, at its address (or telecopy number)
set forth in its Administrative Questionnaire;
or, as to any party, at such other address as shall be designated by such party
in a notice to each other party. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
transmitted by telecopier or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
12.03 EXPENSES, ETC. The Parent and the Borrowers agree jointly and
severally to pay or reimburse each of the Lenders and the Administrative Agent
for: (a) all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including, without limitation, the reasonable fees and expenses of
Milbank, Tweed, Hadley & McCloy, special New York counsel to NatWest) in
connection with (i) the negotiation, preparation, execution and delivery of this
Agreement and the other Credit Documents and the extension of credit hereunder
and (ii) the negotiation or preparation of any modification, supplement or
waiver of any of the terms of this Agreement or any of the other Credit
Documents (whether or not consummated); (b) all reasonable out-of-pocket costs
and expenses of the Lenders and the Administrative Agent (including, without
limitation, the reasonable fees and expenses of legal counsel) in connection
with (i) any Default and any enforcement or collection proceedings resulting
therefrom, including, without limitation, all manner of participation in or
other involvement with (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, (y) judicial or regulatory proceedings
and (z) workout, restructuring or other negotiations or proceedings (whether or
not the workout, restructuring or transaction contemplated thereby is
consummated) and (ii) the enforcement of this Section 12.03; (c) all transfer,
stamp, documentary or other similar taxes, assessments or charges levied by any
governmental
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or revenue authority in respect of this Agreement or any of the
other Credit Documents or any other document referred to herein or therein and
all costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any Security Document or any other document referred to therein;
and (d) all costs, expenses and other charges in respect of title insurance
procured with respect to the Liens created pursuant to the Mortgages.
The Parent and the Borrowers hereby agree jointly and severally to
indemnify the Administrative Agent and each Lender and their respective
directors, officers, employees, attorneys and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages or expenses
incurred by any of them (including, without limitation, any and all losses,
liabilities, claims, damages or expenses incurred by the Administrative Agent to
any Lender, whether or not the Administrative Agent or any Lender is a party
thereto) arising out of or by reason of any investigation or litigation or other
proceedings (including any threatened investigation or litigation or other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use by the Obligors of any of its Subsidiaries of the proceeds of any
of the extensions of credit hereunder, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings (but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified or such
Person's directors, officers, employees, attorneys or agents). Without limiting
the generality of the foregoing, the Parent and the Borrowers jointly and
severally will indemnify the Administrative Agent and each Lender from, and hold
the Administrative Agent and each Lender harmless against, any losses,
liabilities, claims, damages or expenses described in the preceding sentence
(including any Lien filed against any Property covered by the Mortgages or any
part of the Mortgage Estate thereunder in favor of any governmental entity, but
excluding, as provided in the preceding sentence, any loss, liability, claim,
damage or expense incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified) arising under any Environmental Law
as a result of the past, present or future operations of the Parent or any of
its Subsidiaries (or any predecessor in interest to the Parent or any of its
Subsidiaries), or the past, present or future condition of any site or facility
owned, operated or leased at any time by the Parent or any of its Subsidiaries
(or any such predecessor in interest), or any Release or threatened
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Release of any Hazardous Materials at or from any such site or facility,
excluding any such Release or threatened Release that shall occur during any
period when the Administrative Agent or any Lender shall be in possession of
any such site or facility following the exercise by the Administrative Agent
or any Lender of any of its rights and remedies hereunder or under any of the
Security Documents, but including any such Release or threatened Release
occurring during such period that is a continuation of conditions previously
in existence, or of practices employed by the Parent and its Subsidiaries, at
such site or facility.
12.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only after written notice to all Lenders and by an instrument in writing signed
by the Parent, the Borrowers and the Majority Lenders, or by the Parent, the
Borrowers and the Administrative Agent acting with the consent of the Majority
Lenders, and any provision of this Agreement may be waived after written notice
to all Lenders by the Majority Lenders or by the Administrative Agent acting
with the consent of the Majority Lenders; PROVIDED that:
(a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative Agent
acting with the consent of all of the Lenders: (i) increase, or extend the
term of any of the Commitments, or extend the time or waive any requirement
for the scheduled reduction or termination of any of the Commitments,
(ii) extend the date fixed for the scheduled payment of principal of or
interest on any Loan, the Reimbursement Obligations or any fee hereunder,
(iii) reduce the amount of any such payment of principal, (iv) reduce the
rate at which interest is payable thereon or any fee is payable hereunder,
(v) alter the rights or obligations of the Borrowers to prepay Loans, (vi)
alter the manner in which payments or prepayments of principal, interest or
other amounts hereunder shall be applied as between the Lenders or Types or
Facilities of Loans, (vii) alter the terms of this Section 12.04,
(viii) modify the definition of the term "Majority Lenders", "Majority
Revolving Credit Lenders", "Majority Tranche A Term Loan Lenders" or
"Majority Tranche B Term Loan Lenders", or modify in any other manner the
number or percentage of the Lenders required to make any determinations or
waive any rights hereunder or to modify any provision hereof, (ix) release
any Guarantor from any of its guarantee obligations under Section 6 hereof,
or (x) waive any of the conditions
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precedent set forth in Section 7.01, 7.02, 7.03 or 7.04 hereof;
(b) any modification, supplement or waiver of Section 2.01(e) hereof
shall require the consent of NatWest;
(c) any modification or supplement of Section 11 hereof, or of any of
the rights or duties of the Administrative Agent hereunder, shall require
the consent of the Administrative Agent; and
(d) any modification or supplement of Section 6 hereof shall require
the consent of each Guarantor.
12.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) No Obligor may assign any of its rights or obligations hereunder
or under the Notes without the prior consent of all of the Lenders and the
Administrative Agent.
(b) Each Lender may assign any of its Loans, its Notes, its
Commitments, and, if such Lender is a Revolving Credit Lender, its Letter of
Credit Interest (but only with the consent of the Administrative Agent, the
Parent and (in the case of a Revolving Credit Commitment or a Letter of Credit
Interest) the Issuing Banks, such consents not to be unreasonably withheld);
PROVIDED that
(i) (x) no such consent by the Parent, the Administrative Agent or
the Issuing Banks shall be required in the case of any assignment to
another Lender and (y) no such consent by the Parent shall be required in
the case of any assignment of any Tranche B Term Loan;
(ii) except to the extent the Parent and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to another
Lender) shall be in an amount at least equal to $5,000,000;
(iii) each such assignment by a Lender of its Loans, Note,
Commitment or Letter of Credit Interest under any Revolving Credit Facility
shall be made in such manner so that the same portion of its Loans, Note,
Commitment and
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Letter of Credit Interest under all Revolving Credit
Facilities are assigned to the respective assignee;
(iv) each such assignment by a Lender of its Loans or Commitment
under either Tranche A Term Loan Facility shall be made in such manner so
that the same portion of its Loans and Commitment under all Tranche A Term
Loan Facilities are assigned to the respective assignee; and
(v) each such assignment by a Lender of its Loans or Commitment
under either Tranche B Term Loan Facility shall be made in such manner so
that the same portion of its Loans and Commitment under all Tranche B Term
Loan Facilities are assigned to the respective assignee.
Upon execution and delivery by the assignee to the Parent, the Administrative
Agent and the Issuing Banks of an instrument in writing pursuant to which such
assignee agrees to become a "Lender" hereunder (if not already a Lender) having
the Commitment(s), Loans, and, if applicable, Letter of Credit Interest
specified in such instrument, and upon consent thereto by the Parent, the
Administrative Agent and the Issuing Banks to the extent required above, the
assignee shall have, to the extent of such assignment (unless provided in such
assignment with the consent of the Parent, the Administrative Agent and the
Issuing Banks), the obligations, rights and benefits of a Lender hereunder
holding the Commitment(s), Loans and, if applicable, Letter of Credit Interest
(or portions thereof) assigned to it (in addition to the Commitment(s), Loans
and Letter of Credit Interest, if any, theretofore held by such assignee) and
the assigning Lender shall, to the extent of such assignment, be released from
the Commitment(s) (or portion(s) thereof) so assigned. Upon each such
assignment (but excluding, in any event, the assignments contemplated in the
last paragraph of Section 2.01(e) hereof) the assigning Lender shall pay the
Administrative Agent an assignment fee of $3,500.
(c) A Lender may sell or agree to sell to one or more other Persons
(each a "PARTICIPANT") a participation in all or any part of any Loans or Letter
of Credit Interest held by it, or in its Commitments, PROVIDED that such
Participant shall not have any rights or obligations under this Agreement or any
Note or any other Credit Document (the Participant's rights against such Lender
in respect of such participation to be those set forth in the agreements
executed by such Lender in favor of the Participant). All amounts payable by
the Borrowers to any Lender under Section 5 hereof in respect of Loans, Letter
of Credit Interest held by it, and its Commitments, shall be determined as
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if such Lender had not sold or agreed to sell any participations in such Loans,
Letter of Credit Interest and Commitments, and as if such Lender were funding
each of such Loan, Letter of Credit Interest and Commitments in the same way
that it is funding the portion of such Loan, Letter of Credit Interest and
Commitments in which no participations have been sold. In no event shall a
Lender that sells a participation agree with the Participant to take or refrain
from taking any action hereunder or under any other Credit Document except that
such Lender may agree with the Participant that it will not, without the consent
of the Participant, agree to (i) increase or extend the term of such Lender's
related Commitment, (ii) extend the scheduled date fixed for the payment of
principal of or interest on the related Loan or Loans, Reimbursement Obligations
or any portion of any fee hereunder payable to the Participant, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which interest
is payable thereon, or any fee hereunder payable to the Participant, to a level
below the rate at which the Participant is entitled to receive such interest or
fee or (v) consent to any modification, supplement or waiver hereof or of any of
the other Credit Documents to the extent that the same, under Section 11.09
or 12.04 hereof, requires the consent of each Lender.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may (without notice
to the Parent, the Administrative Agent, the Issuing Banks or any other Lender
and without payment of any fee) assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank,
and such Loans and Notes shall be fully transferrable as provided therein. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(e) A Lender may furnish any information concerning the Parent or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Parent or any of its Affiliates or
Subsidiaries without the prior consent of each Lender.
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12.07 SURVIVAL. The obligations of the Obligors under Sections 5.01,
5.05, 5.06, 5.07 and 12.03 hereof, the obligations of each Guarantor under
Section 6.03 hereof, and the obligations of the Lenders under Section 11.05
hereof, shall survive the repayment of the Loans and Reimbursement Obligations
and the termination of the Commitments and, in the case of any Lender that may
assign any interest in its Commitments, Loans or Letter of Credit Interest
hereunder, shall survive the making of such assignment, notwithstanding that
such assigning Lender may cease to be a "Lender" hereunder. In addition, each
representation and warranty made, or deemed to be made by a notice of any
extension of credit (whether by means of a Loan or a Letter of Credit), herein
or pursuant hereto shall survive the making of such representation and warranty,
and no Lender shall be deemed to have waived, by reason of making any extension
of credit hereunder (whether by means of a Loan or a Letter of Credit), any
Default that may arise by reason of such representation or warranty proving to
have been false or misleading, notwithstanding that such Lender or the
Administrative Agent may have had notice or knowledge or reason to believe that
such representation or warranty was false or misleading at the time such
extension of credit was made.
12.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Obligor hereby submits to the nonexclusive jurisdiction
of the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division), and of any other appellate court in the State of New
York, for the purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Each Obligor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a
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court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
12.11 WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) Each Obligor acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Parent or one or more of its Subsidiaries (in connection with this Agreement
or otherwise) by any Lender or by one or more subsidiaries or affiliates of such
Lender and each of the Obligors hereby authorizes each Lender to share any
information delivered to such Lender by such Obligor and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such subsidiary or affiliate, it being
understood that any such subsidiary or affiliate receiving such information
shall be bound by the provisions of paragraph (b) below as if it were a Lender
hereunder. Such authorization shall survive the repayment of the Loans and
Reimbursement Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by any of the Obligors pursuant to this
Agreement that is identified by such Person as being confidential at the time
the same is delivered to the Lenders or the Administrative Agent, PROVIDED that
nothing herein shall limit the disclosure of any such information (i) after such
information shall have become public (other than through a violation of this
Section 12.12), (ii) to the extent required by statute, rule, regulation or
judicial process, (iii) to counsel for any of the Lenders or the Administrative
Agent, (iv) to bank examiners (or any other regulatory authority having
jurisdiction over any Lender or the Administrative Agent), or to auditors or
accountants, (v) to the Administrative Agent or any other Lender, (vi) in
connection with
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any litigation to which any one or more of the Lenders or the Administrative
Agent is a party, or in connection with the enforcement of rights or remedies
hereunder or under any other Credit Document, (vii) to a subsidiary or
affiliate of such Lender as provided in paragraph (a) above or (viii) to any
assignee or participant (or prospective assignee or participant) so long as
such assignee or participant (or prospective assignee or participant) first
executes and delivers to the respective Lender a Confidentiality Agreement
substantially in the form of Exhibit K hereto (or executes and delivers to
such Lender an acknowledgement to the effect that it is bound by the
provisions of this Section 12.12(b), which acknowledgement may be included as
part of the respective assignment or participation agreement pursuant to
which such assignee or participant acquires an interest in the Loans or
Letter of Credit Interest hereunder); PROVIDED, FURTHER, that in no event
shall any Lender or the Administrative Agent be obligated or required to
return any materials furnished by any of the Obligors or any of their
respective Subsidiaries. The obligations of each Lender under this Section
12.12 shall supersede and replace the obligations of such Lender under the
confidentiality letter in respect of this financing signed and delivered by
such Lender to the Company prior to the date hereof; in addition, the
obligations of any assignee that has executed a Confidentiality Agreement in
the form of Exhibit K hereto shall be superseded by this Section 12.12 upon
the date upon which such assignee becomes a Lender hereunder pursuant to
Section 12.06(b) hereof.
CREDIT AGREEMENT
<PAGE>
-172-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
THE PARENT
COMMONWEALTH ALUMINUM CORPORATION
By_________________________
Title:
Address for Notices:
Commonwealth Aluminum Corporation
1200 Meidinger Tower
Louisville, Kentucky 40202
Attention: President
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Joseph B. Frumkin, Esq.
CREDIT AGREEMENT
<PAGE>
-173-
THE BORROWERS
COMMONWEALTH ALUMINUM LEWISPORT,
INC.
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-174-
CASTECH ALUMINUM GROUP INC.
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-175-
BARMET ALUMINUM CORPORATION
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-176-
SUBSIDIARY GUARANTORS
CALC CORPORATION
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-177-
COMMONWEALTH ALUMINUM SALES
CORPORATION
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-178-
LENDERS
NATIONAL WESTMINSTER BANK PLC
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-179-
PNC BANK, NATIONAL ASSOCIATION
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-180-
BANK OF MONTREAL
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-181-
MELLON BANK, N.A.
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-182-
NBD BANK
By_________________________
Title:
CREDIT AGREEMENT
<PAGE>
-183-
THE ADMINISTRATIVE AGENT
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
By_________________________
Title:
Address for Notices:
National Westminster Bank Plc
175 Water Street
New York, New York
Attention: Ronan Agnew
<PAGE>
Exhibit 12
COMMONWEALTH ALUMINUM CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED)
(Dollars in Thousands)
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Years Ended December 31,
---------------- -----------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income from continuing operations before $5,112 $29,161 $43,073 $22,791 $(11,536) $7,977 $(42,555)
income taxes...........................
Fixed charges, exclusive of capitalized
interest............................... $1,445 $ 2,075 $ 4,035 $ 370 $ 477 $ 460 $ 6,687
------ ------- ------- ------- ------- ------ --------
$6,557 $31,236 $47,108 $23,161 $(11,059) $8,437 $(35,868)
------ ------- ------- ------- -------- ------ --------
------ ------- ------- ------- -------- ------ --------
Fixed charges:
Interest charged to expense............. $1,122 $ 1,849 $ 3,473 $ 62 $ 164 $ 122 $ 6,342
One-third of rent expense............... 114 126 253 308 313 338 345
Amortization of Loan Costs............. 209 100 309
Fixed charges, exclusive of capitalized
interest.............................. $1,445 $2,075 $ 4,035 $ 370 $ 477 $ 460 $ 6,687
Capitalized interest.................. 172 - 50 - - - -
------ ------- ------- ------- -------- ------ --------
$1,617 $2,075 $4,085 $ 370 $ 477 $ 460 $ 6,687
------ ------- ------- ------- -------- ------ --------
------ ------- ------- ------- -------- ------ --------
Ratio of earnings to fixed charges....... 4.05 15.05 11.53 62.60 (23.18) 18.34 (5.36)
</TABLE>
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement of
Commonwealth Aluminum Corporation on Form S-4 of our report, which includes
an explanatory paragraph with respect to the Company's change in its method
of accounting for postretirement benefits other than pensions, dated
January 16, 1996, on our audits of the consolidated financial statements
and the financial statement schedule of Commonwealth Aluminum Corporation
as of December 31, 1995 and 1994 and for the three years in the period ended
December 31, 1995. We also consent to the reference to our firm under the
caption "Experts."
COOPERS & LYBRAND LLP
Louisville, Kentucky
October 4, 1996
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of Commonwealth
Aluminum Corporation for the registration of $125,000,000 of 10-3/4% Senior
Subordinated Notes Due 2006 and to the incorporation by reference therein of our
report dated May 10, 1996, with respect to the consolidated financial statements
of CasTech Aluminum Group, Inc. included in the Current Report (Form 8-K) of
Commonwealth Aluminum Corporation filed September 26, 1996 with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
October 2, 1996
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) ______
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer
Identification
No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Judith Bartolini, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2527 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
COMMONWEALTH ALUMINUM CORPORATION
(Name of obligor)
Delaware 13-3245741
(State of Incorporation) (I.R.S. Employer
Identification
No.)
1372 State Road 1957
Lewisport, Kentucky 42351-0480
(Address of principal executive offices)
10 3/4% Senior Subordinated Notes due 2006
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors
of the Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of C-Cube Microsystems Inc., File No.
33-97166, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 1st day of October, 1996.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
----------------------------
J. Bartolini
Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartonlini
----------------------------
J. Bartolini
Vice President
2
<PAGE>
EXHIBIT BAttached is a true and correct copy of the statement of condition of
Harris Trust and Savings Bank as of March 31, 1996, as published in accordance
with a call made by the State Banking Authority and by the Federal Reserve Bank
of the Seventh Reserve District.
[GRAPHIC] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1996, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
THOUSANDS
OF DOLLARS
ASSETS
CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS:
NON-INTEREST BEARING BALANCES AND CURRENCY AND $971,800
COIN.................................
INTEREST BEARING $508,198
BALANCES....................................
SECURITIES:................................................
A. HELD-TO-MATURITY SECURITIES $0
B. AVAILABLE-FOR-SALE SECURITIES $2,925,091
FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER
AGREEMENTS TO RESELL IN
DOMESTIC OFFICES OF THE BANK AND OF ITS EDGE AND
AGREEMENT
SUBSIDIARIES, AND IN IBF'S:
FEDERAL FUNDS $304,450
SOLD............................................
SECURITIES PURCHASED UNDER AGREEMENTS TO $0
RESELL..................................
LOANS AND LEASE FINANCING RECEIVABLES:
LOANS AND LEASES, NET OF UNEARNED
INCOME.................................. $7,653,290
LESS: ALLOWANCE FOR LOAN AND LEASE
LOSSES............................................... 97,833
-----------
LOANS AND LEASES, NET OF UNEARNED INCOME,
ALLOWANCE, AND RESERVE
(ITEM 4.A MINUS 4.b)....................... $7,555,457
ASSETS HELD IN TRADING ACCOUNTS........................ $107,161
PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED
LEASES)................................................ $139,122
OTHER REAL ESTATE OWNED................................ $203
INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND ASSOCIATED
COMPANIES.............................. $200
CUSTOMER'S LIABILITY TO THIS BANK ON ACCEPTANCES
OUTSTANDING........................................ $71,355
INTANGIBLE ASSETS...................................... $18,251
OTHER ASSETS........................................... $474,460
-------------
TOTAL ASSETS $13,075,748
-------------
-------------
3
<PAGE>
LIABILITIES
DEPOSITS:
IN DOMESTIC OFFICES.................... $4,830,361
NON-INTEREST
BEARING................................ $2,390,307
INTEREST
BEARING....................................... $2,440,054
IN FOREIGN OFFICES, EDGE AND AGREEMENT
SUBSIDIARIES, AND IBF'S......................... $2,990,031
NON-INTEREST BEARING......................... $71,451
INTEREST BEARING.............................. $2,918,580
FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER
AGREEMENTS TO REPURCHASE IN DOMESTIC OFFICES OF THE
BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES,
AND IN IBF'S:
FEDERAL FUNDS PURCHASED......................... $882,146
SECURITIES SOLD UNDER AGREEMENTS TO
REPURCHASE...................................... $2,020,913
TRADING LIABILITIES $66,711
OTHER BORROWED MONEY:................................
A. WITH REMAINING MATURITY OF ONE YEAR OR LESS $897,852
B. WITH REMAINING MATURITY OF MORE THAN ONE YEAR $11,520
BANK'S LIABILITY ON ACCEPTANCES EXECUTED AND
OUTSTANDING $71,355
SUBORDINATED NOTES AND DEBENTURES.................... $295,000
OTHER LIABILITIES.................................... $186,774
--------------------------
TOTAL LIABILITIES $12,252,663
--------------------------
--------------------------
EQUITY CAPITAL
COMMON STOCK......................................... $100,000
SURPLUS.............................................. $275,000
A. UNDIVIDED PROFITS AND CAPITAL
RESERVES............................................. $470,392
B. NET UNREALIZED HOLDING GAINS (LOSSES) ON
AVAILABLE-FOR-SALE SECURITIES ($22,307)
--------------------------
TOTAL EQUITY CAPITAL $823,085
--------------------------
--------------------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK, AND EQUITY CAPITAL............................. $13,075,748
--------------------------
--------------------------
I, Steve Neudecker, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
4/30/96
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
MARIBETH S. RAHE
Directors.
4
<PAGE>
EXHIBIT 99.1
LETTER OF TRANSMITTAL
FOR
10 3/4% SENIOR SUBORDINATED NOTES
OF
COMMONWEALTH ALUMINUM CORPORATION
PURSUANT TO THE
EXCHANGE OFFER
IN RESPECT OF
ALL OF ITS OUTSTANDING 10 3/4% SENIOR SUBORDINATED
NOTES DUE OCTOBER 1, 2006
FOR
10 3/4% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2006
------------------------
PURSUANT TO THE PROSPECTUS DATED , 1996
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ,
1996 UNLESS THE EXCHANGE OFFER IS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF
OLD NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M. ON THE BUSINESS DAY
PRIOR TO THE EXPIRATION DATE.
TO: HARRIS TRUST AND SAVINGS BANK, EXCHANGE AGENT
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE: BY HAND OR OVERNIGHT COURIER:
Harris Trust and Savings Bank (212) 701-7636 Harris Trust and Savings Bank
c/o Harris Trust Company of New York c/o Harris Trust Company of New York
P.O. Box 1010 77 Water Street
Wall Street Station 4th Floor
New York, NY 10268 New York, NY 10004
CONFIRM BY
TELEPHONE:
(212) 701-7624
Attention: Mark Zimkind Attention: Mark Zimkind
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION VIA
TELEGRAM, TELEX OR FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE
A VALID DELIVERY. THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE NEW NOTES FOR THEIR OLD NOTES
PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR OLD
NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
By execution hereof, the undersigned acknowledges receipt of the Prospectus
(the "Prospectus"), dated , 1996, of Commonwealth Aluminum
Corporation, a Delaware corporation (the "Company"), which, together with this
Letter of Transmittal and the instructions hereto (the "Letter of Transmittal"),
constitute the Company's offer (the "Exchange Offer") to exchange $1,000
principal amount of its 10 3/4% Senior Subordinated Notes Due October 1, 2006
(the "New Notes") that have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to a Registration Statement of which
the Prospectus constitutes a part, for each $1,000 principal amount of its
outstanding 10 3/4% Senior Subordinated Notes Due October 1, 2006 (the "Old
Notes"), upon the terms and subject to the conditions set forth in the
Prospectus.
This Letter of Transmittal is to be used by Holders if: (i) certificates
representing Old Notes are to be physically delivered to the Exchange Agent
herewith by Holders; (ii) tender of Old Notes is to be made by book-entry
transfer to the Exchange Agent's account at The Depository Trust Company ("DTC")
pursuant to the procedures set forth in the Prospectus under "The Exchange
Offer--Procedures for Tendering" by any financial institution that is a
participant in DTC and whose name appears on a security position listing as the
owner of Old Notes (such participants, acting on behalf of Holders, are referred
to herein, together with such Holders, as "Acting Holders"); or (iii) tender of
Old Notes is to be made according to the guaranteed delivery procedures set
forth in the Prospectus under "The Exchange Offer--Procedures for Tendering."
Delivery of documents to DTC does not constitute delivery to the Exchange Agent.
<PAGE>
The term "Holder" with respect to the Exchange Offer means any person: (i)
in whose name Old Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
Holder; or (ii) whose Old Notes are held of record by DTC who desires to deliver
such Old Notes by book-entry transfer at DTC.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Old Notes must complete
this letter in its entirety.
All capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Prospectus.
The instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
Prospectus, this Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Exchange Agent. See Instruction 8 herein.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR OLD NOTES
MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY.
<PAGE>
List below the Old Notes to which this Letter of Transmittal relates. If the
space provided below is inadequate, list the certificate numbers and principal
amounts on a separately executed schedule and affix the schedule to this Letter
of Transmittal. Tenders of Old Notes will be accepted only in principal amounts
equal to $1,000 or integral multiples thereof.
<TABLE>
<CAPTION>
DESCRIPTION OF OLD NOTES
CERTIFICATE AGGREGATE
NUMBER(S)* PRINCIPAL
(ATTACH SIGNED AMOUNT
NAME(S) AND ADDRESS(ES) OF HOLDER(S) LIST IF TENDERED (IF LESS
(PLEASE FILL IN, IF BLANK) NECESSARY) THAN ALL)**
<S> <C> <C>
TOTAL PRINCIPAL AMOUNT OF OLD NOTES TENDERED
* Need not be completed by Holders tendering by book-entry transfer.
** Need not be completed by Holders who wish to tender with respect to all Old Notes listed. See
Instruction 2.
</TABLE>
<PAGE>
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY DTC TO THE
EXCHANGE AGENT'S ACCOUNT AT DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: __________________________________________
DTC Book-Entry Account No.: _____________________________________________
Transaction Code No.: ___________________________________________________
If Holders desire to tender Old Notes pursuant to the Exchange Offer and (i)
certificates representing such Old Notes are not lost but are not immediately
available, (ii) time will not permit this Letter of Transmittal, certificates
representing such Old Notes or other required documents to reach the Exchange
Agent prior to the Expiration Date or (iii) the procedures for book-entry
transfer cannot be completed prior to the Expiration Date, such Holders may
effect a tender of such Old Notes in accordance with the guaranteed delivery
procedures set forth in the Prospectus under "The Exchange Offer--Procedures for
Tendering."
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Holder(s) of Old Notes: ______________________________________
Window Ticket No. (if any): _____________________________________________
Date of Execution of
Notice of Guaranteed Delivery: ____________________________________________
Name of Eligible Institution that Guaranteed Delivery:
_________________________________________________________________________
If Delivered by Book-Entry Transfer:
Name of Tendering Institution: ____________________________________________
DTC Book-Entry Account No.: _____________________________________________
Transaction Code No.: ___________________________________________________
/ / CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name: ___________________________________________________________________
Address: ________________________________________________________________
<PAGE>
Gentlemen:
Subject to the terms of the Exchange Offer, the undersigned hereby tenders
to the Company the principal amount of Old Notes indicated above. Subject to and
effective upon the acceptance for exchange of the principal amount of Old Notes
tendered in accordance with this Letter of Transmittal, the undersigned sells,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to the Old Notes tendered hereby. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent its agent and
attorney-in-fact (with full knowledge that the Exchange Agent also acts as the
agent of the Company and as Trustee under the Indenture for the Old Notes and
the New Notes) with respect to the tendered Old Notes with full power of
substitution to (i) deliver certificates for such Old Notes to the Company, or
transfer ownership of such Old Notes on the account books maintained by DTC,
together in either such case, with all accompanying evidences of transfer and
authenticity to, or upon the order of, the Company and (ii) present such Old
Notes for transfer on the books of the Company and receive all benefits and
otherwise exercise all rights of beneficial ownership of such Old Notes, all in
accordance with the terms of the Exchange Offer. The power of attorney granted
in this paragraph shall be deemed irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she has full power
and authority to tender, sell, assign and transfer the Old Notes tendered hereby
and that the Company will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim, when the same are acquired by the Company. The undersigned
also acknowledges that this Exchange Offer is being made in reliance upon an
interpretation by the staff of the Securities and Exchange Commission that the
New Notes issued in exchange for the Old Notes pursuant to the Exchange Offer
may be offered for sale, resold and otherwise transferred by holders thereof
(other than any such holder that is an "affiliate" of the Company within the
meaning of Rule 405 under the Securities Act) without compliance with the
registration and prospectus delivery provisions of the Securities Act provided
that such New Notes are acquired in the ordinary course of such holders business
and such holders have no arrangement with any person to participate in the
distribution of such New Notes. If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of the New Notes.
The undersigned represents that (i) the New Notes acquired pursuant to the
Exchange Offer are being obtained in the ordinary course of such holder's
business, (ii) such holder has no arrangements with any person to participate in
the distribution of such New Notes and (iii) such holder is not a "affiliate,"
as defined under Rule 405 of the Securities Act of the Company or, if such
holder is an affiliate, that such holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of New Notes.
If the undersigned is a broker-dealer that will receive New Notes for its own
account in exchange for Old Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such New Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
The undersigned will upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the assignment and transfer of the Old Notes tendered
hereby.
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Old Notes when, and as if the Company has given oral
or written notice thereof to the Exchange Agent. If any tendered Old Notes are
not accepted for exchange pursuant to the Exchange Offer for any reason,
certificates for any such unaccepted Old Notes will be returned (except as noted
below with respect to tenders through DTC), without expense, to the undersigned
at the address shown below or at a different address shown below or at a
different address as may be indicated under "Special Issuance Instructions" as
promptly as practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation under this Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, successors and
assigns.
<PAGE>
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the caption "The Exchange Offer--Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Company upon the terms and
subject to the conditions of the Exchange Offer.
Unless otherwise indicated under "Special Issuance Instructions," please
issue the certificates representing the New Notes issued in exchange for the Old
Notes accepted for exchange and return any Old Notes not tendered or not
exchanged, in the name(s) of the undersigned (or in either such event in the
case of Old Notes tendered by DTC, by credit to the account at DTC). Similarly,
unless otherwise indicated under "Special Delivery Instructions," please send
the certificates representing the New Notes issued in exchange for the Old Notes
accepted for exchange and any certificates for Old Notes not tendered or not
exchanged (and accompanying documents, as appropriate) to the undersigned at the
address shown below the undersigned's signatures, unless, in either event,
tender is being made through DTC. In the event that both "Special Issuance
Instructions" and "Special Delivery Instructions" are completed, please issue
the certificates representing the New Notes issued in exchange for the Old Notes
accepted for exchange and return any Old Notes not tendered or not exchanged in
the name(s) of, and send said certificates to, the person(s) so indicated. The
undersigned recognizes that the Company has no obligation pursuant to the
"Special Issuance Instructions" and "Special Delivery Instructions" to transfer
any Old Notes from the name of the registered holder(s) thereof if the Company
does not accept for exchange any of the Old Notes so tendered.
<PAGE>
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF
OLD NOTES REGARDLESS OF WHETHER OLD NOTES ARE BEING
PHYSICALLY
DELIVERED HEREWITH)
This Letter of Transmittal must be signed by the
Holder(s) of Old Notes exactly as their name(s) appear(s) on
certificate(s) for Old Notes or, if tendered by a
participant in DTC, exactly as such participant's name
appears on a security position listing as the owner of Old
Notes, or by person(s) authorized to become registered
Holder(s) by endorsements and documents transmitted with
this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer
or other person acting in a fiduciary or representative
capacity, such person must set forth his or her full title
below under "Capacity" and submit evidence satisfactory to
the Company of such person's authority to so act. See
Instruction 3 herein.
If the signature appearing below is not of the
registered Holder(s) of the Old Notes, then the registered
Holder(s) must sign a valid proxy.
<TABLE>
<S> <C>
X......................................... Date: ....................................
X......................................... Date: ....................................
SIGNATURE(S) OF HOLDER(S) OR AUTHORIZED SIGNATORY
</TABLE>
<TABLE>
<S> <C> <C> <C>
Name(s): ................................. Address: .................................
................................. .................................
(PLEASE PRINT) (INCLUDING ZIP CODE)
</TABLE>
<TABLE>
<S> <C>
Capacity: ................................ Area Code and Telephone No.: .............
Social Security No.: .....................
</TABLE>
PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN
SIGNATURE GUARANTEE (See Instruction 3 herein)
Certain Signatures Must Be Guaranteed by an Eligible
Institution
............................................................
(NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURES)
............................................................
(ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE NUMBER
(INCLUDING AREA CODE) OF FIRM)
............................................................
(AUTHORIZED SIGNATURE)
............................................................
(PRINTED NAME)
............................................................
(TITLE)
Date:.......................................................
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS
(See Instruction 4 herein)
To be completed ONLY if certificates for Old Notes in a principal amount not
tendered are to be issued in the name of, or the New Notes issued pursuant to
the Exchange Offer are to be issued to the order of, someone other than the
person or persons whose signature(s) appear(s) within this Letter of Transmittal
or issued to an address different from that shown in the box entitled
"Description of Old Notes" within this Letter of Transmittal, or if Old Notes
tendered by book-entry transfer that are not accepted for purchase are to be
credited to an account maintained at DTC.
Name:...........................................................................
(PLEASE PRINT)
Address:........................................................................
(PLEASE PRINT)
...............................................................................
ZIP CODE
...............................................................................
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER
(SEE SUBSTITUTE FORM W-9 HEREIN)
SPECIAL DELIVERY INSTRUCTIONS
(See Instruction 4 herein)
To be completed ONLY if certificates for Old Notes in a principal amount not
tendered or not accepted for purchase or the New Notes issued pursuant to the
Exchange Offer are to be sent to someone other than the person or persons whose
signature(s) appear(s) within this Letter of Transmittal or to an address
different from that shown in the box entitled "Description of Old Notes" within
this Letter of Transmittal.
Name:...........................................................................
(PLEASE PRINT)
Address:........................................................................
(PLEASE PRINT)
...............................................................................
ZIP CODE
...............................................................................
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER
(SEE SUBSTITUTE FORM W-9 HEREIN)
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER AND THE
SOLICITATION
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES. The certificates
for the tendered Old Notes (or a confirmation of a book-entry transfer into the
Exchange Agent's account at DTC of all Old Notes delivered electronically), as
well as a properly completed and duly executed copy of this Letter of
Transmittal or facsimile hereof and any other documents required by this Letter
of Transmittal must be received by the Exchange Agent at its address set forth
herein prior to 5:00 P.M., New York City time, on the Expiration Date. The
method of delivery of the tendered Old Notes, this Letter of Transmittal and all
other required documents to the Exchange Agent is at the election and risk of
the Holder and, except as otherwise provided below, the delivery will be deemed
made only when actually received by the Exchange Agent. Instead of delivery by
mail, it is recommended that the Holder use an overnight or hand delivery
service. In all cases, sufficient time should be allowed to assure timely
delivery. No Letter of Transmittal or Old Notes should be sent to the Company.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver their Old Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date must tender their Old Notes and follow the guaranteed
delivery procedures set forth in the Prospectus. Pursuant to such procedures:
(i) such tender must be made by or through an Eligible Institution; (ii) prior
to the Expiration Date, the Exchange Agent must have received from the Eligible
Institution a properly completed and duly executed Notice of Guaranteed Delivery
(by facsimile transmission, mail or hand delivery) setting forth the name and
address of the Holder of the Old Notes, the certificate number or numbers of
such Old Notes and the principal amount of Old Notes tendered, stating that the
tender is being made thereby and guaranteeing that, within five business days
after the Expiration Date, this Letter of Transmittal (or facsimile thereof)
together with the certificate(s) representing the Old Notes (or a confirmation
of electronic delivery of book-entry delivery into the Exchange Agent's account
at DTC) and any of the required documents will be deposited by the Eligible
Institution with the Exchange Agent; and (iii) such properly completed and
executed Letter of Transmittal (or facsimile hereof), as well as all other
documents required by this Letter of Transmittal and the certificate(s)
representing all tendered Old Notes in proper form for transfer (or a
confirmation of electronic mail delivery of book-entry delivery into the
Exchange Agent's account at DTC), must be received by the Exchange Agent within
five business days after the Expiration Date, all as provided in the Prospectus
under the caption "Guaranteed Delivery Procedures." Any Holder of Old Notes who
wishes to tender his Old Notes pursuant to the guaranteed delivery procedures
described above must ensure that the Exchange Agent receives the Notice of
Guaranteed Delivery prior to 5:00 P.M., New York City time, on the Expiration
Date.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Old Notes will be determined by
the Company in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes the Company's acceptance of which would,
in the opinion of counsel for the Company, be unlawful. The Company also
reserves the right to waive any irregularities or conditions of tender as to
particular Old Notes. The Company's interpretation of the terms and conditions
of the Exchange Offer (including the instructions in this Letter of Transmittal)
will be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Company shall determine. Neither the Company, the Exchange Agent nor
any other person shall be under any duty to give notification of defects or
irregularities with respect to tenders of Old Notes, nor shall any of them incur
any liability for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such defects or irregularities have been
cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost by the Exchange Agent to the
tendering Holders of Old Notes, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
<PAGE>
2. PARTIAL TENDERS. Tenders of Old Notes will be accepted in all
denominations of $1,000 and integral multiples in excess thereof. If less than
the entire principal amount of any Old Notes is tendered, the tendering Holder
should fill in the principal amount tendered in the third column of the chart
entitled "Description of Old Notes." The entire principal amount of Old Notes
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated. If the entire principal amount of all Old Notes is not
tendered, Old Notes for the principal amount of Old Notes delivered to the
Exchange Agent will be deemed to have been tendered unless otherwise indicated.
If the entire principal amount of all Old Notes is not tendered, Old Notes for
the principal amount of Old Notes not tendered and a certificate or certificates
representing New Notes issued in exchange of any Old Notes accepted will be sent
to the Holder at his or her registered address, unless a different address is
provided in the appropriate box on this Letter of Transmittal or unless tender
is made through DTC, promptly after the Old Notes are accepted for exchange.
3. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter of Transmittal (or facsimile hereof) is
signed by the registered Holder(s) of the Old Notes tendered hereby, the
signature must correspond with the name(s) as written on the face of the Old
Notes without alternation, enlargement or any change whatsoever.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder(s) of Old Notes tendered and the certificate(s) for New Notes
issued in exchange therefor is to be issued (or any untendered principal amount
of Old Notes is to be reissued) to the registered Holder, such Holder need not
and should not endorse any tendered Old Note, nor provide a separate bond power.
In any other case, such holder must either properly endorse the Old Notes
tendered or transmit a properly completed separate bond power with this Letter
of Transmittal, with the signatures on the endorsement or bond power guaranteed
by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person
other than the registered Holder(s) of any Old Notes listed, such Old Notes must
be endorsed or accompanied by appropriate bond powers signed as the name of the
registered Holder(s) appears on the Old Notes.
If this Letter of Transmittal (or facsimile hereof) or any Old Notes or bond
powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, or officers of corporations or others acting in a fiduciary
or representative capacity, such persons should so indicate when signing, and
unless waived by the Company, evidence satisfactory to the Company of their
authority so to act must be submitted with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by this
Instruction 3 must be guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal (or facsimile hereof) must be
guaranteed by an Eligible Institution unless the Old Notes tendered pursuant
thereto are tendered (i) by a registered Holder (including any participant in
DTC whose name appears on a security position listing as the owner of Old Notes)
who has not completed the box set forth herein entitled "Special Issuance
Instructions" or the box entitled "Special Delivery Instructions" or (ii) for
the account of an Eligible Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering Holders should
indicate, in the applicable spaces, the name and address to which New Notes or
substitute Old Notes for principal amounts not tendered or not accepted for
exchange are to be issued or sent, if different from the name and address of the
person signing this Letter of Transmittal (or in the case of tender of the Old
Notes through DTC, if different from DTC). In the case of issuance in a
different name, the taxpayer identification or social security number of the
person named must also be indicated.
5. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, certificates representing New Notes or Old Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered Holder
of the Old Notes tendered hereby, or if tendered Old Notes are registered in the
name of any person other than the person signing this Letter of Transmittal, or
if a transfer tax is imposed for any reason other than the exchange of Old Notes
pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered Holder or any other person) will be payable
by the tendering Holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with this Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering Holder.
<PAGE>
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
6. WAIVER OF CONDITIONS. The Company reserves the absolute right to amend,
waive or modify specified conditions in the Exchange Offer in the case of any
Old Notes tendered.
7. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any tendering Holder
whose Old Notes have been mutilated, lost, stolen or destroyed should contact
the Exchange Agent at the address indicated herein for further instruction.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus or this
Letter of Transmittal may be directed to the Exchange Agent at the address
specified in the Prospectus. Holders may also contact their broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Exchange Offer.
(DO NOT WRITE IN SPACE BELOW)
<TABLE>
<S> <C> <C>
CERTIFICATE SURRENDERED OLD NOTES TENDERED OLD NOTES ACCEPTED
DELIVERY PREPARED BY CHECKED BY DATE
</TABLE>
<PAGE>
IMPORTANT TAX INFORMATION
Under federal income tax laws, a Holder whose tendered Old Notes are
accepted for payment is required to provide the Exchange Agent (as payer) with
such Holder's correct TIN on Substitute Form W-9 below or otherwise establish a
basis for exemption from backup withholding. If such Holder is an individual,
the TIN is his social security number. If the Exchange Agent is not provided
with the correct TIN, a $50 penalty may be imposed by the Internal Revenue
Service, and payments made with respect to Old Notes purchased pursuant to the
Exchange Offer may be subject to backup withholding.
Certain Holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on Substitute
Form W-9. A foreign person may qualify as an exempt recipient by submitting to
the Exchange Agent a properly completed Internal Revenue Service Form W-8,
signed under penalties of perjury, attesting to that Holder's exempt status. A
Form W-8 can be obtained from the Exchange Agent. See the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the Holder or other payee. Backup withholding is not
an additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the Exchange
Offer, the Holder is required to provide the Exchange Agent with either: (i) the
Holder's correct TIN by completing the form below, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such Holder is awaiting a
TIN) and that (A) the Holder has not been notified by the Internal Revenue
Service that the Holder is subject to backup withholding as a result of failure
to report all interest or dividends or (B) the Internal Revenue Service has
notified the Holder that the Holder is no longer subject to backup withholding;
or (ii) an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (E.G., social
security number or employer identification number) of the registered Holder of
the Old Notes. If the Old Notes are held in more than one name or are held not
in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
<PAGE>
PAYER'S NAME: ____________________________
<TABLE>
<S> <C> <C>
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE ----------------------------
FORM W-9 BOX AT RIGHT AND CERTIFY BY SIGNING Social Security Number
AND DATING BELOW OR
----------------------------------
Employer Identification Number
Department of the Treasury PART 2--Certification--Under Penalties of Perjury, I certify PART 3--
Internal Revenue Service that: Awaiting TIN / /
Payer's Request for Taxpayer (1) The number shown on this form is my correct Taxpayer
Identification Number (TIN) Identification Number (or I am waiting for a number to be
issued to me) and
(2) I am not subject to backup withholding either because I
have not been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as a
result of failure to report all interest or dividends, or
the IRS has notified me that I am no longer subject to
backup withholding.
Certificate instructions--You must cross out item (2) in Part 2 above if you have been notified
by the IRS that you are subject to backup withholding because of underreporting interest or
dividends on your tax return. However, if after being notified by the IRS that you were subject
to backup withholding you received another notification from the IRS stating that you are no
longer subject to backup withholding, do not cross out item (2).
SIGNATURE ------------------------------------------------------- DATE ------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 20% OF ANY PAYMENTS MADE TO HOLDERS OF NEW NOTES PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number within 60 days, 20 percent
of all reportable payments made to me thereafter will be withheld until I
provide a number.
- -------------------------------------- --------------------------------------
Signature Date
<PAGE>
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
HARRIS TRUST AND SAVINGS BANK
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE: BY HAND OR OVERNIGHT COURIER:
Harris Trust and Savings Bank (212) 701-7636 Harris Trust and Savings Bank
c/o Harris Trust Company of New York c/o Harris Trust Company of New York
P.O. Box 1010 77 Water Street
Wall Street Station CONFIRM BY 4th Floor
New York, NY 10268 TELEPHONE: New York, NY 10004
Attention: Mark Zimkind (212) 701-7624 Attention: Mark Zimkind
</TABLE>
<PAGE>
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR
10 3/4% SENIOR SUBORDINATED NOTES DUE OCTOBER 1, 2006
OF
COMMONWEALTH ALUMINUM CORPORATION
As set forth in the Prospectus, dated , 1996 (the "Prospectus"),
of Commonwealth Aluminum Corporation (the "Company"), in the accompanying Letter
of Transmittal and instructions thereto (the "Letter of Transmittal"), this form
or one substantially equivalent hereto must be used to accept the Company's
exchange offer (the "Exchange Offer") to purchase all of its outstanding 10 3/4%
Senior Subordinated Notes Due October 1, 2006 (the "Old Notes") if (i)
certificates representing the Old Notes to be tendered for purchase and payment
are not lost but are not immediately available, (ii) time will not permit the
Letter of Transmittal, certificates representing such Old Notes or other
required documents to reach the Exchange Agent prior to the Expiration Date or
(iii) the procedures for book-entry transfer cannot be completed prior to the
Expiration Date. This form may be delivered by an Eligible Institution by mail
or hand delivery or transmitted, via telegram, telex or facsimile, to the
Exchange Agent as set forth below. All capitalized terms used herein but not
defined herein shall have the meanings ascribed to them in the Prospectus.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 1996 UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE").
TENDERS OF OLD NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M. ON THE
BUSINESS DAY PRIOR TO THE EXPIRATION DATE.
THE EXCHANGE AGENT:
HARRIS TRUST AND SAVINGS BANK
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE: BY HAND OR OVERNIGHT COURIER:
Harris Trust and Savings Bank (212) 701-7636 Harris Trust and Savings Bank
c/o Harris Trust Company of New York CONFIRM BY TELEPHONE: c/o Harris Trust Company of New York
P.O. Box 1010 (212) 701-7624 77 Water Street
Wall Street Station 4th Floor
New York, NY 10268 New York, NY 10004
Attention: Mark Zimkind Attention: Mark Zimkind
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION VIA TELEGRAM,
TELEX OR FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
This form is not to be used to guarantee signatures. If a signature on the
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tender(s) to the Company, upon the terms and subject
to the conditions set forth in the Exchange Offer and the Letter of Transmittal,
receipt of which is hereby acknowledged, the aggregate principal amount of Old
Notes set forth below pursuant to the guaranteed delivery procedures set forth
in the Prospectus.
The undersigned understands that tenders of Old Notes will be accepted only
in principal amounts equal to $1,000 or integral multiples thereof. The
undersigned understands that tenders of Old Notes pursuant to the Exchange Offer
may not be withdrawn after 5:00 p.m., New York City time on the Business Day
prior to the Expiration Date. Tenders of Old Notes may also be withdrawn if the
Exchange Offer is terminated without any such Old Notes being purchased
thereunder or as otherwise provided in the Prospectus.
All authority herein conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall survive the death or incapacity of the undersigned and
every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
<PAGE>
PLEASE SIGN AND COMPLETE
<TABLE>
<S> <C>
Signature(s) of Registered Owner(s) or Name(s) of Registered Holder(s):
Authorized ------------------------------------------------
Signatory: ------------------------------------------------
- -------------------------------------- ------------------------------------------------
- ------------------------------------------------
- ------------------------------------------------
Principal Amount of Old Notes Tendered: Address: ---------------------------------------
- ---------- ------------------------------------------------
- ------------------------------------------------
Certificate No(s). of Old Notes (if available): Area Code and Telephone No.: -------------------
- -------
- ------------------------------------------------ If Old Notes will be delivered by book-entry
- ------------------------------------------------ transfer at The Depository Trust Company,
Date: ------------------------------------------ insert, Depository Account No.:
-----------------------------------
</TABLE>
This Notice of Guaranteed Delivery must be signed by the registered holder(s) of
Old Notes exactly as its (their) name(s) appear on certificates for Old Notes or
on a security position listing as the owner of Old Notes, or by person(s)
authorized to become registered Holder(s) by endorsements and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must
provide the following information.
Please print name(s) and address(es)
Name(s):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Capacity:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Address(es):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Do not send Old Notes with this form. Notes should be sent to the Exchange Agent
together with a properly completed and duly executed Letter of Transmittal.
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc. or a commercial bank
or trust company having an office or a correspondent in the United States,
hereby (a) represents that each holder of Old Notes on whose behalf this tender
is being made "own(s)" the Old Notes covered hereby within the meaning of Rule
14e-4 under the Securities Exchange Act of 1934, as amended, (b) represents that
such tender of Old Notes complies with such Rule 14e-4, and (c) guarantees that,
within five New York Stock Exchange trading days from the date of this Notice of
Guaranteed Delivery, a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof), together with certificates representing
the Old Notes covered hereby in proper form for transfer (or confirmation of the
book-entry transfer of such Old Notes into the Exchange Agent's account at The
Depository Trust Company, pursuant to the procedure for book-entry transfer set
forth in the Prospectus) and required documents will be deposited by the
undersigned with the Exchange Agent.
THE UNDERSIGNED ACKNOWLEDGES THAT IT MUST DELIVER THE LETTER OF TRANSMITTAL
AND OLD NOTES TENDERED HEREBY TO THE EXCHANGE AGENT WITHIN THE TIME PERIOD SET
FORTH ABOVE AND THAT FAILURE TO DO SO COULD RESULT IN FINANCIAL LOSS TO THE
UNDERSIGNED.
<TABLE>
<S> <C>
Name of Firm: --------------------------------- ------------------------------------------------
Authorized Signature
Address: --------------------------------------- Name: -----------------------------------------
- ------------------------------------------------ Title:
------------------------------------------
Area Code and Telephone No.: ------------------- Date: ------------------------------------------
</TABLE>
