Exhibit T3C.1
_________________________________________
GOLDEN NORTHWEST ALUMINUM HOLDING COMPANY, as Issuer
and
THE SUBSIDIARY GUARANTORS
(defined herein)
10% SUBORDINATED SECURED NOTES DUE 2011
INDENTURE
____________________
Dated as of April 14, 2005
____________________
WILMINGTON TRUST COMPANY,
Trustee
_________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE........................1
Section 1.01. DEFINITIONS.................................................1
Section 1.02. OTHER DEFINITIONS...........................................9
Section 1.03. TRUST INDENTURE ACT DEFINITIONS.............................9
Section 1.04. RULES OF CONSTRUCTION......................................10
ARTICLE II. THE NOTES.......................................................10
Section 2.01. FORM AND DATING............................................10
Section 2.02. EXECUTION AND AUTHENTICATION...............................11
Section 2.03. REGISTRAR AND PAYING AGENT.................................11
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST........................12
Section 2.05. HOLDER LISTS...............................................12
Section 2.06. TRANSFER AND EXCHANGE......................................12
Section 2.07. REPLACEMENT NOTES..........................................17
Section 2.08. OUTSTANDING NOTES..........................................17
Section 2.09. TREASURY NOTES.............................................18
Section 2.10. TEMPORARY NOTES............................................18
Section 2.11. CANCELLATION...............................................18
Section 2.12. DEFAULTED INTEREST.........................................19
ARTICLE III. REDEMPTION AND PREPAYMENT......................................19
Section 3.01. NOTICES TO TRUSTEE.........................................19
Section 3.02. SELECTION OF NOTES TO BE REDEEMED..........................19
Section 3.03. NOTICE OF REDEMPTION.......................................19
Section 3.04. EFFECT OF NOTICE OF REDEMPTION.............................20
Section 3.05. DEPOSIT OF REDEMPTION PRICE................................20
Section 3.06. NOTES REDEEMED IN PART.....................................21
Section 3.07. OPTIONAL REDEMPTION........................................21
ARTICLE IV. COVENANTS.......................................................21
Section 4.01. PAYMENT OF NOTES...........................................21
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY............................22
Section 4.03. REPORTS AND FINANCIAL INFORMATION..........................22
Section 4.04. COMPLIANCE CERTIFICATE.....................................23
Section 4.05. TAXES......................................................24
Section 4.06. STAY, EXTENSION AND USURY LAWS.............................24
Section 4.07. DISTRIBUTIONS; CAPITAL CHANGE..............................24
Section 4.08. INSPECTION RIGHTS; BOOKS AND RECORDS; ACCOUNTING
METHODS....................................................25
Section 4.09. COVENANTS REGARDING NSC....................................25
Section 4.10. INTENTIONALLY OMITTED......................................26
Section 4.11. LIENS; GUARANTEES..........................................26
Section 4.12. MERGERS, CONSOLIDATIONS OR SALES...........................26
II
Section 4.13. CORPORATE EXISTENCE........................................26
Section 4.14. PAYMENTS FOR CONSENT.......................................26
Section 4.15. ADDITIONAL SUBSIDIARY GUARANTEES...........................27
ARTICLE V. SUCCESSORS.......................................................27
Section 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS...................27
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED..........................27
ARTICLE VI. DEFAULTS AND REMEDIES...........................................27
Section 6.01. EVENTS OF DEFAULT..........................................27
Section 6.02. ACCELERATION...............................................29
Section 6.03. OTHER REMEDIES.............................................29
Section 6.04. WAIVER OF PAST DEFAULTS....................................29
Section 6.05. CONTROL BY MAJORITY........................................30
Section 6.06. LIMITATION ON SUITS........................................30
Section 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT..............30
Section 6.08. COLLECTION SUIT BY TRUSTEE.................................30
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM...........................31
Section 6.10. PRIORITIES.................................................31
Section 6.11. UNDERTAKING FOR COSTS......................................32
ARTICLE VII. TRUSTEE........................................................32
Section 7.01. DUTIES OF TRUSTEE..........................................32
Section 7.02. RIGHTS OF TRUSTEE..........................................33
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE...............................33
Section 7.04. TRUSTEE'S DISCLAIMER.......................................34
Section 7.05. NOTICE OF DEFAULTS.........................................34
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.................34
Section 7.07. COMPENSATION AND INDEMNITY.................................34
Section 7.08. REPLACEMENT OF TRUSTEE.....................................35
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC...........................36
Section 7.10. ELIGIBILITY; DISQUALIFICATION..............................36
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..........36
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE......................37
Section 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.................................................37
Section 8.02. LEGAL DEFEASANCE AND DISCHARGE.............................37
Section 8.03. COVENANT DEFEASANCE........................................37
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.................38
Section 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS...................39
Section 8.06. REPAYMENT TO COMPANY.......................................40
Section 8.07. REINSTATEMENT..............................................40
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ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER.................................40
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES........................40
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES...........................41
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT........................42
Section 9.04. REVOCATION AND EFFECT OF CONSENTS..........................43
Section 9.05. NOTATION ON OR EXCHANGE OF NOTES...........................43
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC............................43
ARTICLE X. SUBSIDIARY GUARANTEES.............................................43
Section 10.01. SUBSIDIARY GUARANTEES......................................43
Section 10.02. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY...............44
Section 10.03. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES............45
Section 10.04. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS..............................................45
Section 10.05. RELEASES FOLLOWING SALE OF ASSETS..........................46
ARTICLE XI. MISCELLANEOUS....................................................47
Section 11.01. TRUST INDENTURE ACT CONTROLS...............................47
Section 11.02. NOTICES....................................................47
Section 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS
OF NOTES...................................................48
Section 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.........48
Section 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION..............48
Section 11.06. RULES BY TRUSTEE AND AGENTS................................49
Section 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.................................49
Section 11.08. GOVERNING LAW..............................................49
Section 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS..............49
Section 11.10. SUCCESSORS.................................................49
Section 11.11. SEVERABILITY...............................................49
Section 11.12. COUNTERPART ORIGINALS......................................50
Section 11.13. TABLE OF CONTENTS, HEADINGS, ETC...........................50
ARTICLE XII. COLLATERAL AND SECURITY.........................................50
Section 12.01. COLLATERAL.................................................50
Section 12.02. SECURITY AGREEMENTS........................................50
Section 12.03. RELEASE OF COLLATERAL......................................50
Section 12.04. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE
UNDER THE SECURITY AGREEMENTS..............................51
Section 12.05. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE SECURITY AGREEMENTS....................................52
Section 12.06. TERMINATION OF SECURITY INTEREST...........................52
Section 12.07. ENFORCEMENT OF SECURITY INTERESTS..........................52
ARTICLE XIII. SUBORDINATION OF NOTES.........................................52
Section 13.01. NOTE SUBORDINATE TO SENIOR DEBT............................52
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Section 13.02. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT............52
Section 13.03. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS................53
Section 13.04. TRUSTEE TO EFFECTUATE SUBORDINATION........................53
Section 13.05. NO WAIVER OF SUBORDINATION PROVISIONS......................53
Section 13.06. NOTICE TO TRUSTEE..........................................54
Section 13.07. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT..........................................54
Section 13.08. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT...........55
Section 13.09. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS...........................55
Section 13.10. OBLIGATIONS OF COMPANY UNCONDITIONAL.......................55
Section 13.11. RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION
PROVISIONS.................................................55
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF SUBSIDIARY GUARANTEE
Exhibit C FORM OF SUPPLEMENTAL INDENTURE
Exhibit D FORM OF CERTIFICATE OF TRANSFER
Exhibit E FORM OF CERTIFICATE OF EXCHANGE
Exhibit F FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
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INDENTURE dated as of April 14, 2005 among Golden Northwest
Aluminum Holding Company, a Delaware corporation (the "Company"), the
Subsidiary Guarantors (as defined herein) and Wilmington Trust Company, as
trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit
of the Holders of the 10% Subordinated Secured Notes due 2011 (the "Notes"):
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Paying Agent or the Registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear or Cedel that apply to such transfer or
exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company,
or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership (whether general or limited) or membership
interests and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cedel" means Cedel Bank, SA.
"Collateral" means Noteholder Collateral (as such term is defined
in the Collateral Agency Agreement).
"Collateral Agency Agreement" means the Collateral Agency,
Subordination and Intercreditor Agreement dated as of the date hereof among the
Collateral Trustee, the Trustee, the trustee for the Senior Secured Notes, The
Bank of New York and the agent under the Loan Agreement.
"Collateral Trustee" has the meaning provided in the Collateral
Agency Agreement.
"Company" means Golden Northwest Aluminum Holding Company, a
Delaware corporation, and any and all successors thereto.
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 11.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Dalles Smelter" means the mothballed primary aluminum smelter,
casting facilities and associated facilities owned by Northwest Aluminum
Company, an Oregon corporation, in The Dalles, Oregon.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Deferred Interest" means interest, otherwise due and payable on an
Interest Payment Date, which is deferred pursuant to an Interest Deferral in
accordance with this Indenture.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A hereto except that such Note shall not bear the Global Note
Legend and, in the case of Restricted Definitive Notes, shall bear the Private
Placement Legend.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Distributions" means, in respect of any Person (a) the payment or
making of any dividend or other distribution of property in respect of Capital
Stock (or any options or warrants for, or other rights with respect to, such
stock) of such Person, other than distributions in Capital Stock (or any options
or warrants for such stock) of the same class; or (b) the redemption or other
acquisition by such entity of any Capital Stock (or any options or warrants for
such stock) of such Person.
2
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), consistently applied.
"GAC Collateral" means all of the property, plant and equipment and
general intangibles in which Goldendale Aluminum Company has any right, title or
interest.
"Global Notes" means, individually and collectively, each of the
Notes, in the form of Exhibit A hereto, issued in accordance with Section 2.01
or 2.06(a) hereof.
"Global Note Legend" means the legend set forth in Section
2.06(c)(i), which is required to be placed on all Global Notes issued under this
Indenture.
"Goldendale Smelter" means the mothballed primary aluminum smelter,
casting facilities, unloading facility and other associated facilities and
property owned by Goldendale Aluminum Company, a Delaware corporation, in
Goldendale, Washington and Portland, Oregon.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; (ii) other agreements
or arrangements designed to protect such Person against fluctuations in interest
rates; and (iii) agreements or arrangements designed to protect such Person
against fluctuations in the value of foreign currency.
3
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
excepting from the foregoing any such balance that constitutes an accrued
expense or trade payable, if and to the extent any of the foregoing (other than
letters of credit and Hedging Obligations) would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, as well as all
Indebtedness of others secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee by such Person of any Indebtedness of any
other Person. The amount of any Indebtedness outstanding as of any date shall be
(i) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, and (ii) the principal amount thereof, together with
any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, that is not also a QIB.
"interest" when referring to interest payable on the Notes, means
the interest borne by the Notes and shall include Deferred Interest and
Compounded Interest.
"Interest Payment Date" has the meaning provided in paragraph 1 of
the Note.
"Issue Date" means April 14, 2005.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
4
"Loan Agreement" means that certain Loan Agreement, dated as of the
date hereof, by and among Northwest Aluminum Specialties, Inc., as borrower, the
Company, as parent guarantor, Northwest Aluminum Technologies, LLC, Northwest
Aluminum Company and NSC Smelter LLC, as subsidiary guarantors, SPCP Group, LLC
and ▇▇▇▇▇▇▇ Distressed Investment Special Purpose Fund, Ltd., as lenders, and
Wilmington Trust Company, as administrative agent, providing for borrowings,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
restated, amended and restated, modified, renewed, refunded, extended replaced
or refinanced from time to time.
"Material Adverse Effect" means a change in, or an effect on, the
Company and its Subsidiaries or their assets or operations that individually or
in the aggregate could reasonably be expected to be materially adverse to the
condition (financial or otherwise), operations, or post-Issue Date liabilities
of the Company (as such liabilities are contemplated by the Plan of
Reorganization) and the Subsidiaries, or their businesses, taken as a whole.
"Maturity Date" means March 31, 2011 or such earlier date upon which
the principal of the Notes shall become due and payable, whether by
acceleration, redemption or otherwise.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any sale, transfer or other
disposition of assets or Equity Interests (including, without limitation, any
cash received upon the sale, transfer or other disposition of any non-cash
consideration received in any such sale, transfer or other disposition), net of
the direct costs relating to such sale, transfer or other disposition
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions) and any relocation expenses incurred as a result thereof,
taxes paid or payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"NSC" means NSC Smelter LLC, a Delaware limited liability company.
"NWED" means Northwest Energy Development, LLC, an Oregon limited
liability company, or such corporation which shall be a successor to NWED.
"NWED Entities" means NWED and its Subsidiaries.
"NWED Subsidiaries" means the Subsidiaries of NWED.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
5
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, the Secretary or any Vice-President
of such Person.
"Officer's Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company that meets the requirements of Section
11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.05 hereof.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Permitted Guarantees" means: (i) the Subsidiary Guarantees; (ii)
guarantees of the Senior Subordinated Secured Notes, (iii) guarantees of the
Senior Secured Notes; (iv) guarantees executed pursuant to the Loan Agreement;
(v) any other guarantees expressly contemplated by the Plan of Reorganization
after the Issue Date; (vi) guarantees of Indebtedness not to exceed $1,000,000
in the aggregate from time to time secured by a lien described in clause (vii)
of the defined term "Permitted Liens," provided such Indebtedness does not
exceed the lesser of the cost or fair market value of the equipment financed
with such Indebtedness; (vii) Guarantee obligations that are subordinated to the
Notes on terms reasonably acceptable to the Trustee acting upon the direction of
the Required Holders; (viii) Guarantees by the Company or any of its
Subsidiaries of the Indebtedness of another such Subsidiary (other than
Indebtedness of the NWED Entities) or the Company; (ix) Guarantees by the
Company in favor of trade creditors of its Subsidiaries (other than trade
creditors of the NWED Entities) incurred in the ordinary course of business; (x)
Guarantees discharged or otherwise terminated by the Plan of Reorganization; and
(xi) extensions, refinancings and renewals of any of the foregoing, provided
that the principal amount subject to any such Guarantee is not increased or the
terms modified to impose more burdensome terms upon the Company or any
Subsidiary, as the case may be.
"Permitted Liens" means any Lien (i) arising under the Security
Agreements, (ii) securing the Senior Secured Notes; (iii) securing the Loan
Agreement; (iv) securing the Senior Subordinated Notes; (v) otherwise expressly
contemplated by the Plan of Reorganization; (vi) for taxes, fees, assessments or
other governmental charges or levies, either not delinquent or being contested
in good faith by appropriate proceedings and for which adequate reserves are
maintained; (vii) not to exceed $1,000,000 in the aggregate (A) upon or in any
equipment acquired or held by the Company or any of its Subsidiaries to secure
the purchase price of such equipment or Indebtedness incurred solely for the
purpose of financing the acquisition of such equipment, or (B) existing on such
equipment at the time of its acquisition, provided that it is confined solely to
the property so acquired and improvements thereon, and the proceeds of such
equipment; (viii) incurred in connection with the extension, renewal or
refinancing of Indebtedness secured in the manner described in clauses (i)
through (vii) above, provided that any extension, renewal or replacement thereof
shall be limited to the property encumbered thereby and the principal amount of
the Indebtedness being extended, renewed or refinanced does not increase; (ix)
arising from pre- or post-judgment attachment, seizure, a writ or distress
warrant, levy, or other similar process (A) the enforcement of which is stayed
or satisfied within
6
30 days after the creation of such Lien or (B) which do not secure amounts
individually or in the aggregate exceeding $100,000; (x) in favor of banks or
other financial institutions arising in connection with deposit accounts held at
such institutions; (xi) Liens granted by the NWED Subsidiaries; and (xii) Liens
not described above arising in the ordinary course of business and securing in
the aggregate not more than $100,000 from time to time.
"Permitted Reorganized Technologies Disposition" means the sale of
all Equity Interests or all or substantially all of the assets of Technologies
after the Issue Date, provided that the Company shall have delivered an
Officer's Certificate to the Collateral Trustee certifying that (i) such sale is
on arm's-length terms for reasonably equivalent value and (ii) all of the Net
Proceeds of the sale will be received by the Company for use in accordance with
all applicable covenants relating to the Notes and the Subordinated Secured
Notes.
"Person" means any individual, sole proprietorship, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or Governmental Authority.
"Plan of Reorganization" means the Third Modified Plan of
Reorganization Dated March 1, 2005 Proposed Jointly by Golden Northwest
Aluminum, Inc., Technologies, Northwest Aluminum Specialties, Inc., Northwest
Aluminum Company and the Official Committee of Unsecured Creditors.
"Private Placement Legend" means the legend set forth in Section
2.06(c)(ii) to be placed on all Restricted Definitive Notes issued under this
Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Required Holders" means, at any date of determination, the Holder
or Holders of a majority or more in aggregate principal amount of Notes at the
time outstanding.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
7
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreements" means the Collateral Agency Agreement and the
Security Documents (as such term is defined in the Collateral Agency Agreement).
"Senior Debt" means the Senior Secured Note Claims (as defined in
the Collateral Agency Agreement) and the Senior Subordinated Note Claims (as
defined in the Collateral Agency Agreement).
"Senior Secured Notes" means $5.5 million aggregate principal amount
of the Company's 8% Subordinated Secured Notes due 2010.
"Senior Subordinated Notes" means up to $165,000 aggregate principal
amount of the Company's 8% Senior Subordinated Secured Notes due 2006.
"Smelter Restart" means the re-commencement of aluminum production
at one or more cell lines at the Dalles Smelter or the Goldendale Smelter that
the Company has certified in an Officer's Certificate delivered to the Trustee
is reasonably expected to result in the production of 20,000MT of aluminum
during six consecutive months of commercial operations.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means the Guarantee by each Subsidiary
Guarantor of the Company's payment obligations under this Indenture and the
Notes, executed pursuant to the provisions of this Indenture.
"Subsidiary Guarantor" means each of (i) the Subsidiaries of the
Company signatory to this Indenture and (ii) any other Subsidiary that executes
a Subsidiary Guarantee in accordance with the provisions of this Indenture, and
their respective successors and assigns.
"Technologies" means Northwest Aluminum Technologies, LLC, a
Washington limited liability company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Tolling Agreements" means contracts under which the customer owns
all of the primary raw materials and all of the finished goods, and the Company
and/or its Subsidiaries receive tolling fees for converting the primary raw
materials into finished products.
8
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
Section 1.02. OTHER DEFINITIONS
Term Defined in
Section
"Authentication Order"..............................................2.02
"Compounded Interest"...............................................4.01
"Covenant Defeasance"...............................................8.03
"DTC"...............................................................2.03
"Event of Default"..................................................6.01
"Interest Deferral".................................................4.01
"Legal Defeasance"..................................................8.02
"Paying Agent"......................................................2.03
"Registrar".........................................................2.03
Section 1.03. TRUST INDENTURE ACT DEFINITIONS. WHENEVER THIS INDENTURE REFERS TO
A PROVISION OF THE TIA, THE PROVISION IS INCORPORATED BY REFERENCE IN AND MADE A
PART OF THIS INDENTURE.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes and the Subsidiary Guarantees means the
Company and the Subsidiary Guarantors, respectively, and any successor obligor
upon the Notes and the Subsidiary Guarantees, respectively.
All other terms used in this Indenture not defined herein but
that are defined by the TIA or defined by TIA reference to another statute or
defined by SEC rule under the TIA have the meanings so assigned to them.
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Section 1.04. RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(2) words in the singular include the plural, and in the plural include the
singular;
(3) provisions apply to successive events and transactions; and
(4) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or
rules adopted by the SEC from time to time.
ARTICLE II.
THE NOTES
Section 2.01. FORM AND DATING
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of whole dollars.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Notes. The Notes shall be originally issued as Global Notes.
Thereafter, beneficial interests in the Global Note may be exchanged for
Restricted Definitive Notes and Unrestricted Definitive Notes. Notes issued in
global form shall be substantially in the form of Exhibit A attached hereto
(including the Global Note Legend thereon). Notes issued in definitive form
shall be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and, in the case of Restricted Definitive Notes,
shall bear the Private Placement Legend). Each Note shall represent such of the
outstanding Notes as shall be specified therein and shall represent the
aggregate principal amount of outstanding Notes from time to time as reflected
in the records of the Trustee and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, transfers and redemptions. Any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee in the records of the Trustee
or the Custodian, at the direction of the Trustee.
(c) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear"
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and the "General Terms and Conditions of Cedel Bank" and "Customer Handbook" of
Cedel Bank shall be applicable to transfers of beneficial interests in Global
Notes that are held by Participants through Euroclear or Cedel Bank.
Section 2.02. EXECUTION AND AUTHENTICATION
A duly authorized Officer shall sign the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by an
Officer (an "Authentication Order"), authenticate Notes for original issue up to
the aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time is limited to and shall not
exceed $10,000,000 except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03. REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint the Registrar and one or more additional paying agents.
The term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. Neither the
Company nor any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to any Global Notes that may be issued
hereunder.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Note Custodian with respect to the Global Notes.
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Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Notes, and will notify the Trustee of
any Default by the Company in making any such payment. While any such Default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
shall have no further liability for the money. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
Section 2.05. HOLDER LISTS
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312. If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least seven Business
Days before each interest payment date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of the Holders of Notes and
the Company shall otherwise comply with TIA ss. 312(a).
Section 2.06. TRANSFER AND EXCHANGE
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes will be exchanged by the
Company for Unrestricted Definitive Notes if (i) the Company delivers to the
Trustee notice from the Depositary that it is unwilling or unable to continue to
act as Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company determines that the Global Notes (in whole but not in part)
should be exchanged for Unrestricted Definitive Notes and Restricted Definitive
Notes and delivers a written notice to such effect to the Trustee. Upon the
occurrence of either of the preceding events in (i) or (ii) above, Unrestricted
Definitive Notes and/or Restricted Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. In addition, upon the request of a holder of a beneficial interest
in a Global Note, made to the Trustee or the Company, such holder's beneficial
interest in a Global Note may be exchanged for a Definitive Note. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b) hereof.
(b) Transfer and Exchange of Definitive Notes and Beneficial Interests in
the Global Notes. The transfer and exchange of beneficial interests in the
Global Notes shall be effected
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through the Depositary, in accordance with the provisions of this Indenture and
the Applicable Procedures.
(i) Beneficial Interests in Global Notes to Unrestricted Definitive
Notes. If any holder of a beneficial interest in a Global Note
proposes to exchange such beneficial interest for an
Unrestricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Note, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(iii) hereof, the Trustee
shall cause the aggregate principal amount of the Global Note to
be reduced accordingly pursuant to Section 2.06(d) hereof, and
the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions an
Unrestricted Definitive Note in the appropriate principal
amount. Any Unrestricted Definitive Note issued in exchange for
a beneficial interest pursuant to this Section 2.06(b)(i) shall
be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Unrestricted Definitive Notes to the
Persons in whose names such Notes are so registered.
(ii) Unrestricted Definitive Notes to Beneficial Interests in Global
Notes. A Holder of an Unrestricted Definitive Note may exchange
such Note for a beneficial interest in a Global Note or transfer
such Unrestricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in Global
Note at any time. Upon receipt of a request for such an exchange
or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of the Global Note.
(iii) Transfer and Exchange of Unrestricted Definitive Notes for
Unrestricted Definitive Notes. Upon request by a Holder of
Unrestricted Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(b)(iii), the Registrar shall
register the transfer or exchange of Unrestricted Definitive
Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar
the Unrestricted Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly
authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and
information, as applicable, required pursuant to the provisions
of this Section 2.06(b).
(iv) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered
in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Note if the Registrar received the
following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the form of
Exhibit D hereto, including the certifications in item (1) thereof;
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(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of Exhibit D
hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, the transferor must
deliver a certificate in the form of Exhibit D hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(v) Restricted Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note:
(1) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted
Definitive Note, such Holder delivers a certificate in
the form of Exhibit E hereto, including the
certifications in item (1)(b) thereof;
(2) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of an Unrestricted
Definitive Note, such Holder delivers a certificate in
the form of Exhibit D hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (v), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or transfer
is in compliance with the Securities Act and the restrictions on
transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(c) Legends. (i) The following legends shall appear on the face
of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, ANY
14
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 HEREON 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
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(ii) Each Restricted Definitive Note (and all Notes issued
in exchange therefore or substitution thereof) shall bear the legend in
substantially the following form.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE
MEANING OF REGULATION S UNDER THE ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2),
(3) OR (7) OF RULE 501 UNDER THE ACT, AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY (A) TO THE COMPANY OR ANY
OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE ACT, (C) FOR SO LONG AS THE NOTES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
15
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE ACT THAT IS
ACQUIRING THE NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE ACT, SUBJECT TO THE COMPANY'S
AND THE TRUSTEE'S, OR TRANSFER AGENT'S, AS APPLICABLE, RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E), OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE OR TRANSFER AGENT THE NOTES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ISSUED WITHOUT REGISTRATION UNDER THE ACT OR ANY STATE
SECURITIES LAWS. THEY MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE
TRANSFERRED FOR VALUE UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF
COUNSEL SATISFACTORY TO IT, OR OTHERWISE SATISFIES ITSELF, THAT
REGISTRATION IS NOT REQUIRED.
(d) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a Global Note have been exchanged for Definitive Notes
or a Global Note has been redeemed, repurchased or canceled in whole and not in
part, each such Global Note shall be returned to or retained and canceled by the
Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note or for Definitive Notes, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and such reduction shall be noted in the records of the Trustee or
by the Depositary at the direction of the Trustee to reflect such reduction.
(e) General Provisions Relating to Transfers and Exchanges
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Global Notes and Definitive Notes upon the Company's order or
at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed
in part.
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(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to register
the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of
any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between
a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all
other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02
hereof.
Section 2.07. REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof,
notwithstanding Section 316(a) of the TIA, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note;
provided, however, Notes held by the Company shall not be deemed to be
outstanding for purposes of Section 3.07 hereof. Section
17
316(a) of the TIA is specifically excluded from this Indenture with respect to
Affiliates of the Company.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that date
such Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09. TREASURY NOTES
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned shall be so disregarded. Notwithstanding Section 316(a) of the TIA, Notes
held by Affiliates of the Company shall not be so disregarded.
Section 2.10. TEMPORARY NOTES
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
Section 2.11. CANCELLATION
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
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Section 2.12. DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE III.
REDEMPTION AND PREPAYMENT
Section 3.01. NOTICES TO TRUSTEE
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officer's Certificate setting forth (i) the redemption date, (ii) the principal
amount of Notes to be redeemed, and (iii) the redemption price (including
without limitation all amounts of Deferred Interest and Compounded Interest due
on the redemption date).
Section 3.02. SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
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Section 3.03. NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price (including without limitation all amounts of
Deferred Interest and Compounded Interest due on the redemption date);
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date; and
(g) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officer's Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section 3.04. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. DEPOSIT OF REDEMPTION PRICE
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest (including any Deferred Interest and
Compounded Interest) on all Notes to be redeemed on that date. The Trustee or
the Paying Agent shall promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption price of, and accrued interest on, all Notes to
be redeemed.
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If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. To the extent any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06. NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
Section 3.07. OPTIONAL REDEMPTION
(a) The Notes will be subject to redemption at any time at the option of
the Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at a redemption price equal to 100% of the principal amount of the Notes
to be redeemed, plus accrued and unpaid interest thereon to the applicable
redemption date.
(b) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE IV.
COVENANTS
Section 4.01. PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of and
interest on the Notes on the dates and in the manner provided in the Notes.
Principal and interest shall be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal and
interest then due; provided, however, that with respect to payments of interest
due on any of the first 12 Interest Payment Dates, the Company may elect, by
delivery of an Officer's Certificate to the Trustee no later than thirty (30)
days prior to the relevant Interest Payment Date, to defer the payment of
interest due on such Interest Payment Date until the Maturity Date ("Interest
Deferral"); provided, further, that during any period in which Deferred Interest
remains unpaid, supplemental interest shall accrue thereon at a rate per annum
equal to eight percent (8%) ("Compounded Interest").
If the Company elects to make an Interest Deferral, the Company
shall deliver to the Trustee and the Holders at least thirty (30) days prior to
the relevant Interest Payment Date,
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notice, in the form of an Officer's Certificate, stating (i) that the Company
has elected to make an Interest Deferral, (ii) and the amount of interest for
each $1,000 in aggregate principal amount of Notes to be deferred; (iii) the
amount of Compounded Interest accrued to such Interest Payment Date per $1,000
aggregate principal amount of Notes due to prior Interest Deferrals, if any, and
(iv) that all Deferred Interest and Compounded Interest is due on the Maturity
Date. Notwithstanding the foregoing, the Company shall not be entitled to make
any Interest Deferral on or after the 12th Interest Payment Date after the Issue
Date.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 2% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful. For purposes of the foregoing, interest that is subject to an Interest
Deferral in accordance with the preceding paragraph shall not considered an
"overdue installment of interest" unless such interest shall not be paid on the
Maturity Date, in which case, such interest shall be considered an overdue
installment of interest from but excluding the Maturity Date.
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission 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 shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
Section 4.03. REPORTS AND FINANCIAL INFORMATION
(a) The Company will furnish to the Trustee and to each Holder (either in
writing or by posting the applicable document on a secure website accessible to
the Trustee and each Holder) the following:
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(i) Financial Statements. Within five (5) Business Days after being
prepared, any audited or unaudited consolidated or consolidating balance sheets,
and any income statements, cash flow statements or statements of changes in
stockholders' equity for the Company and/or its Subsidiaries for any fiscal
period ending or as of any date after the date of this Agreement, and any
accompanying notes thereto. The Company shall be obligated to furnish the
foregoing financial information to Holders only in the event that the Company
prepares such financial information. The foregoing shall not create any
obligation on the part of the Company to prepare such financial information or
to obtain an audit thereof.
(ii) Officer's Certificate. With each of the financial statements
delivered pursuant to Section 4.03(a)(i), a certificate of the chief financial
officer of the Company stating that, except as explained in reasonable detail in
such certificate, (A) that all such statements have been prepared in accordance
with GAAP and present fairly the financial position of the Company and/or its
Subsidiaries as at the dates thereof and its/their results of operations for the
periods then ended, subject to normal year-end adjustments in the case of any
interim financial statements, (B) the Company is, at the date of such
certificate, in compliance in all material respects with all of its covenants
and agreements in this Indenture, and (C) no Event of Default then exists or
existed during the period covered by such financial statements. If such
certificate discloses that a covenant has not been complied with, or that an
Event of Default existed or exists, such certificate shall set forth what action
the Company has taken or proposes to take with respect thereto.
(b) If required by the rules and regulations of the SEC, so long as any
Notes are outstanding, the Company shall furnish to the Holders of Notes (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries and, with respect to the annual information only, a report thereon
by the Company's certified independent accountants and (ii) all current reports
that would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports, in each case, within the time periods specified
in the SEC's rules and regulations. If required by applicable law, the Company
shall at all times comply with TIA ss. 314(a).
(c) For so long as any Notes remain outstanding, the Company and the
Subsidiary Guarantors shall furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04. COMPLIANCE CERTIFICATE
(a) The Company and each Subsidiary Guarantor shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officer's
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge
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the Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, if audited year-end
financial statements are delivered pursuant to Section 4.03(a) above, such
financial statements shall be accompanied by a written statement of the
Company's independent public accountants (who shall be ▇▇▇▇▇▇▇ & Company, P.C.
or a firm of comparable or superior reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article IV or Article V hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officer's Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05. TAXES
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment could not reasonably be expected to
have a Material Adverse Effect.
Section 4.06. STAY, EXTENSION AND USURY LAWS
The Company and each of the Subsidiary Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter
in force, that may affect the covenants or the performance of this Indenture;
and the Company and each of 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 shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
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Section 4.07. DISTRIBUTIONS; CAPITAL CHANGE
The Company shall not (i) directly or indirectly declare or make, or
incur any liability to make, any Distribution, except Distributions (a) to the
Company by a Wholly Owned Subsidiary of the Company, (b) by one Wholly Owned
Subsidiary to another Wholly Owned Subsidiary (other than the NWED Entities) or
(c) to a Wholly-Owned Subsidiary of NWED by a Wholly Owned Subsidiary of NWED,
or (ii) make any change in its capital structure which could reasonably be
expected to have a Material Adverse Effect.
Section 4.08. INSPECTION RIGHTS; BOOKS AND RECORDS; ACCOUNTING METHODS
(a) The Company shall permit the Trustee and/or one or more Holders of in
excess of twenty-five percent (25%) of the aggregate principal amount of the
Notes outstanding at the request and expense of the Holders and on reasonable
advance notice, to visit and inspect the Company's and its Subsidiaries'
properties, to examine their books of account and records and to discuss their
affairs, finances and accounts with their officers, all at such reasonable times
as may be requested by the Trustee and/or such Holders; provided, however, that
the Company shall not be obligated pursuant to this Section 4.08(a) to provide
access to any information which it reasonably considers to be a trade secret or
similar confidential information unless the Trustee and each Holder requesting
such information executes and delivers to the Company a nondisclosure agreement
that is mutually acceptable to all parties.
(b) The Company shall keep adequate records and books of account in which
entries will be made in accordance with GAAP. The Company shall not make any
significant change in accounting policies or reporting practices other than
changes required by GAAP or by law.
Section 4.09. COVENANTS REGARDING NSC
(a) NSC shall be a corporation or limited liability company duly organized
and validly existing under the laws of the jurisdiction of organization selected
pursuant to the Plan of Reorganization and will have the requisite corporate or
company power and authority to own and operate its properties and assets and
carry on its business as contemplated by the Plan of Reorganization, and to
enter into, execute, deliver and perform its obligations under the Subsidiary
Guarantee, the Security Agreements and any other agreement to which it is a
party.
(b) The Company shall directly or indirectly, own all of the outstanding
Equity Interests of NSC.
(c) NSC shall approve and duly execute the Subsidiary Guarantee, the
Security Agreements, and any other agreement to which NSC is required to be a
party and the performance of all obligations of NSC thereunder by all necessary
corporate or company action of its incorporator, and the Subsidiary Guarantee,
the Security Agreement, and any such other agreement shall constitute valid and
legally binding obligations of NSC.
(d) At such time as the Company causes NSC to acquire the GAC Collateral,
the execution and delivery by NSC of the Subsidiary Guarantee, the Security
Agreement, and any other agreement to which NSC is a party and the performance
of all obligations of NSC thereunder will not violate, conflict with or result
in a breach of or default under (i) any of the organizational documents of NSC,
(ii) any statute, regulation or court or administrative order or
25
process applicable to NSC, or (iii) any agreement or instrument to which NSC is
a party or by which NSC or any of its property is bound.
Section 4.10. INTENTIONALLY OMITTED.
Section 4.11. LIENS; GUARANTEES
The Company shall not, and shall not permit any of its Subsidiaries
to, (i) create, incur, assume or allow any Lien in, upon or with respect to any
of its properties, except for Permitted Liens, or (ii) create, incur, assume or
be or remain liable with respect to any Guarantee of Indebtedness of any Person,
other than Permitted Guarantees.
Section 4.12. MERGERS, CONSOLIDATIONS OR SALES
The Company shall not enter into any transaction of merger,
reorganization, or consolidation or transfer, sell, assign, lease, or otherwise
dispose of all or substantially all of its property or Equity Interests, or wind
up, liquidate or dissolve, or agree to do any of the foregoing without the
affirmative written consent of the Required Holders. Notwithstanding the
foregoing, and regardless of whether such action would be subject to the consent
of the Required Holders pursuant to the preceding sentence, the Company shall be
permitted to make the Permitted Reorganized Technologies Disposition without any
further action by or consent of the Holders, and Technologies' Subsidiary
Guarantee and the security interest in Technologies' assets pursuant to the
Security Agreements shall terminate automatically upon the closing thereof.
Section 4.13. CORPORATE EXISTENCE
Subject to Section 4.12 and Article V hereof, the Company shall do
or cause to be done all things necessary to preserve and keep in full force and
effect (i) its corporate existence, and the corporate, limited liability
company, partnership or other existence of each of its Subsidiaries (other than
the NWED Subsidiaries), in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such Subsidiary and (ii) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries (other than the NWED
Subsidiaries); provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, limited
liability company, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.
Section 4.14. PAYMENTS FOR CONSENT
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
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Section 4.15. ADDITIONAL SUBSIDIARY GUARANTEES
If the Company or any of its Subsidiaries shall acquire or create
another Subsidiary, then such newly acquired or created Subsidiary shall become
a Subsidiary Guarantor and execute a Supplemental Indenture and deliver an
Opinion of Counsel, in accordance with the terms of this Indenture, it being
understood that the NWED Entities shall not be required to become Subsidiary
Guarantors.
ARTICLE V.
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS
Subject to Section 4.12, the Company shall not consolidate or merge
with or into (whether or not the Company is the surviving corporation) or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions to, another
corporation, Person or entity unless (i) the Company is the surviving
corporation or the entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a Person organized or existing under the laws of the United States, any
state thereof or the District of Columbia, (ii) the entity or Person formed by
or surviving any such consolidation or merger (if other than the Company) or the
entity or Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the obligations of the
Company under the Notes and this Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee and (iii) immediately after
such transaction, no Default or Event of Default exists.
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor corporation and not to the Company), and
may exercise every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale of all of the Company's assets that meets the requirements of Section
5.01 hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT
Each of the following constitutes an "Event of Default":
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(a) default in the payment when due of the principal (whether by
redemption or otherwise) of or interest on, the Notes if such default is not
cured by the Company within ten (10) days after the Trustee or Required Holders
has given the Company written notice of such default;
(b) failure by the Company or any of its Subsidiaries to comply with the
provisions described under Sections 4.07, 4.10, 4.11, 4.12, 4.13 or 5.01 or
failure by the Company or any of its Subsidiaries for 30 days after notice to
comply with any of its other agreements in this Indenture or the Notes;
(c) default under any mortgage, indenture or instrument (other than this
Indenture or the Notes) under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
of its Subsidiaries (other than the NWED Entities) (or the payment of which is
guaranteed by the Company or any of its Subsidiaries other than the NWED
Entities) whether such Indebtedness or guarantee now exists, or is created after
the date hereof, which default (i) is caused by a failure to pay principal of or
interest on such Indebtedness prior to the 31st date after the expiration of the
grace period provided in such Indebtedness on the date of such default, unless
such default has been cured or waived prior to such 31st day (a "Payment
Default") or (ii) results in the acceleration of such Indebtedness prior to its
stated maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $500,000 or more;
(d) except as permitted herein, any Subsidiary Guarantee shall be held in
any judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Subsidiary Guarantor, or any Person
acting on behalf of any Subsidiary Guarantor, shall deny or disaffirm its
obligations under its Subsidiary Guarantee;
(e) the Company or any of its Subsidiaries (other than the NWED Entities),
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(f) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any of its Subsidiaries
(other than the NWED Entities)in an involuntary case;
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(ii) appoints a Custodian of the Company or any of its Subsidiaries
(other than the NWED Entities) or for all or substantially all of the property
of the Company or any of its Subsidiaries (other than the NWED Entities); or
(iii) orders the liquidation of the Company or any of its
Subsidiaries (other than the NWED Entities);
and the order or decree remains unstayed and in effect for 60 consecutive days.
The term "custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Section 6.02. ACCELERATION
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (e) or (f) of Section 6.01
hereof occurs with respect to the Company or any of its Subsidiaries (other than
the NWED Entities), all outstanding Notes shall be due and payable immediately
without further action or notice. The Holders of the Notes may not enforce this
Indenture or the Notes except as provided herein. Except as otherwise provided
in this Indenture, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest.
Section 6.03. OTHER REMEDIES
Subject to Sections 6.02 and 6.05, if an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal and interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. WAIVER OF PAST DEFAULTS
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of or interest on, the Notes (including in connection
with an offer to purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon
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any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 6.05. CONTROL BY MAJORITY
Subject to Article VII hereof, holders of a majority in principal
amount of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability.
Section 6.06. LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 30-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal and interest on the Note,
on or after the respective due dates expressed in the Note (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 6.08. COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(a) occurs and is
continuing, the Trustee is authorized, subject to Sections 6.02 and 6.05, to
recover judgment in its own name and
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as trustee of an express trust against the Company for the whole amount of
principal of and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest (including without limitation,
post petition interest), and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. PRIORITIES
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
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Section 6.11. UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 25% in
principal amount of the then outstanding Notes.
ARTICLE VII.
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
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(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. RIGHTS OF TRUSTEE
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officer's Certificate or Opinion of Counsel. 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 from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) 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 unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days or resign. Any
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Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
Section 7.04. TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes; it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture; it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee; and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of
the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Note, the Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of the Notes.
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
Within 60 days after each March 31 beginning with March 31, 2006,
and for so long as Notes remain outstanding, the Trustee shall, if required
applicable law, mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2) if required by applicable law. The Trustee shall also transmit by mail
any such reports as required by TIA ss. 313(c).
A copy of any such report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
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The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
Section 7.08. REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is organized
and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of condition.
If so required by applicable law, this Indenture shall always have a
Trustee who satisfies the requirements of TIA ss. 310(a)(1), (2) and (5). The
Trustee, if so required by applicable law, is subject to TIA ss. 310(b).
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Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If so required by the TIA, the Trustee shall be subject to TIA ss. 311(a),
excluding any creditor relationship listed in TIA ss. 311(b). If so required by
the TIA, a Trustee who has resigned or been removed shall be subject to TIA ss.
311(a) to the extent indicated therein.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officer's Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article VIII.
Section 8.02. LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Notes when such payments are due, (b) the
Company's obligations with respect to such Notes under Article II and Section
4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article VIII. Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.03, 4.04, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.14, 4.15 and 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences thereof)
in connection with such covenants, but shall continue to be
37
deemed "outstanding" for all other purposes hereunder (it being understood that
such Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(b) and 6.01(c) hereof shall not constitute Events of Default.
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of and interest on the outstanding Notes on
the stated date for payment thereof or on the applicable redemption date, as the
case may be and the Company must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds
38
to be applied against such deposit) or insofar as Sections 6.01(e) or 6.01(f)
hereof is concerned, at any time in the period ending on the 91st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an opinion of counsel
to the effect that, assuming no intervening bankruptcy of the Company between
the date of deposit and the 91st day following the deposit and assuming no
Holder of Notes is an insider of the Company, after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally;
(g) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(h) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section
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8.04(a) hereof), are in excess of the amount thereof that would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. REPAYMENT TO COMPANY
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or interest on
any Note and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on its request or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as a secured 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 New York Times, The
Wall Street Journal (national edition) or USA Today (such publication to be
chosen by the Company based upon the lowest publication cost), 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 or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 8.07. REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or Governmental Authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of or interest on any Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.02 of this Indenture, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Subsidiary Guarantees, the Security Agreements or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article II hereof (including
the related definitions) in a manner that does not materially adversely affect
any Holder;
40
(c) to provide for the assumption of the Company's or a Subsidiary
Guarantor's obligations to the Holders of the Notes by a successor to the
Company or a Subsidiary Guarantor pursuant to Article V or Article X hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of the Notes;
(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA;
(f) to allow any Subsidiary Guarantor to execute a supplemental indenture
and/or a Subsidiary Guarantee with respect to the Notes;
(g) to provide for the issuance of Notes in payment of interest in lieu of
Interest Deferral and to make all changes resulting therefrom;
(h) to amend the Collateral Agency Agreement in connection with any
refinancing of the existing Loan Agreement; or
(i) to amend the Security Agreements as required to comply with Section
13.05 hereof.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company and the Subsidiary
Guarantors in the execution of any amended or supplemental Indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES
Except as provided below in this Section 9.02, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Security Agreements, the Subsidiary Guarantees and the Notes with the
consent of the Required Holders voting as a single class (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with any
provision of this Indenture, the Subsidiary Guarantees or the Notes may be
waived with the consent of the Required Holders voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes
are considered to be "outstanding" for purposes of this Section 9.02.
41
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Required
Holders voting as a single class may waive compliance in a particular instance
by the Company with any provision of this Indenture or the Notes. However,
without the consent of each Holder affected, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting
Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter the provisions with respect to the redemption of the Notes.
(c) reduce the rate of or change the time for payment of interest on any
Note;
(d) waive a Default or Event of Default in the payment of principal of or
interest on the Notes (except a rescission of acceleration of the Notes by the
Required Holders and a waiver of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of or interest on the Notes; or
(g) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
42
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT
If so required by the TIA, every amendment or supplement to this
Indenture or the Notes shall be set forth in an amended or supplemental
Indenture that complies with the TIA as then in effect.
Section 9.04. REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE X.
SUBSIDIARY GUARANTEES
Section 10.01. SUBSIDIARY GUARANTEES
Subject to this Article X, each of the Subsidiary Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that: (a)
the principal of and interest on the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes, if any, if lawful, and
all other obligations of the Company
43
to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and (b)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due, or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
The Subsidiary Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Subsidiary
Guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this
Subsidiary Guarantee shall not be discharged except by complete performance of
the obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Subsidiary Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Subsidiary Guarantors, any amount paid by either to the Trustee or such
Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it shall not be entitled to
any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI hereof for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as provided in
Article VI hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Guarantors for the purpose of
this Subsidiary Guarantee. 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 the
Subsidiary Guarantee.
Section 10.02. LIMITATION ON SUBSIDIARY GUARANTOR LIABILITY
Each Subsidiary Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act
44
or any similar federal or state law to the extent applicable to any Subsidiary
Guarantee and not constitute any improper distribution under, or be otherwise
prohibited by, applicable state law. To effectuate the foregoing intention, the
Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that
the obligations of any such Subsidiary Guarantor under its Subsidiary Guarantee
and this Article X shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Subsidiary Guarantor and all other matters that are relevant under such
laws, and, to the extent relevant, after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article X, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance or being improper or prohibited under
applicable state law.
Section 10.03. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
To evidence its Subsidiary Guarantee set forth in Section 10.01,
each Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form included in Exhibit B shall be endorsed by
an Officer of such Subsidiary Guarantor on each Note authenticated and delivered
by the Trustee and that this Indenture shall be executed on behalf of such
Subsidiary Guarantor by its President or one of its Vice Presidents.
Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Subsidiary Guarantors.
In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Indenture, if required by Section
4.15 hereof, the Company shall cause such Subsidiaries to execute supplemental
indentures (in the form of Exhibit C hereto) to this Indenture and Subsidiary
Guarantees in accordance with Section 4.15 hereof and this Article X, to the
extent applicable.
Section 10.04. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
Subject to Section 10.05 hereof, no Subsidiary Guarantor may
consolidate with or merge with or into (whether or not such Subsidiary Guarantor
is the surviving Person) another Person whether or not affiliated with such
Subsidiary Guarantor unless:
(a) subject to this Section 10.04 hereof, the Person formed by or
surviving any such consolidation or merger (if other than such Subsidiary
Guarantor) assumes all the obligations of
45
such Subsidiary Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Notes, the Indenture
and the Subsidiary Guarantees;
(b) such merger does not involve the NWED Entities; and
(c) immediately after giving effect to such transaction, no Default or
Event of Default exists.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Subsidiary Guarantor, such successor Person shall succeed to
and be substituted for the Subsidiary Guarantor with the same effect as if it
had been named herein as a Subsidiary Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Subsidiary Guarantees to be endorsed
upon all of the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such
Subsidiary Guarantees had been issued at the date of the execution hereof.
Section 10.05. RELEASES FOLLOWING SALE OF ASSETS
In the event of a sale or other disposition of all of the assets of
any Subsidiary Guarantor, by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the capital stock of any Subsidiary
Guarantor, then such Subsidiary Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the capital
stock of such Subsidiary Guarantor) or the Person acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets
of such Subsidiary Guarantor) will be released and relieved of any obligations
under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the applicable provisions of
this Indenture, including without limitation with respect to a Permitted
Reorganized Technologies Disposition, the requirements set forth in the
definition of "Permitted Reorganized Technologies Disposition." Upon delivery by
the Company to the Trustee of an Officer's Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by the Company in
accordance with the applicable provisions of this Indenture, including without
limitation with respect to a Permitted Reorganized Technologies Disposition, the
requirements set forth in the definition of Permitted Reorganized Technologies
Disposition, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Subsidiary Guarantor from its obligations
under its Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Subsidiary Guarantor
under this Indenture as provided in this Article X.
46
ARTICLE XI.
MISCELLANEOUS
Section 11.01. TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss. 318(c), the imposed duties shall control.
Section 11.02. NOTICES
Any notice or communication by the Company, any Subsidiary Guarantor
or the Trustee to the others is duly given if in writing and delivered in Person
or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address.
If to the Company and/or any Subsidiary Guarantor:
Golden Northwest Aluminum Holding Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Stoel Rives LLP
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
If to the Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company, any Subsidiary Guarantor or the Trustee, by notice to
the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
47
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
Section 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer's Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
48
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
Section 11.06. RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS
No past, present or future director, officer, employee, incorporator
or stockholder of the Company or any Subsidiary Guarantor, as such, shall have
any liability for any obligations of the Company or such Subsidiary Guarantor
under the Notes, the Subsidiary Guarantees or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 11.08. GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 11.10. SUCCESSORS
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 11.11. SEVERABILITY
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
49
Section 11.12. COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
ARTICLE XII.
COLLATERAL AND SECURITY
Section 12.01. COLLATERAL.
To secure payment of the Notes, each of the Company and the
Subsidiary Guarantors have granted to the Collateral Trustee for and on behalf
of the Trustee and the Holders and pursuant to the Security Agreements the
Collateral Trustee has been granted a Lien in the Collateral, such Lien to have
the priority set forth in the Collateral Agency Agreement. Under certain
circumstances set forth in this Indenture and the Security Agreements, the
Equity Interests issued by any Subsidiary of the Company may be released from
such Liens.
Section 12.02. SECURITY AGREEMENTS.
The due and punctual payment of the principal of and interest, if
any, on the Notes when and as the same shall be due and payable, whether on an
Interest Payment Date, at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest (to the extent permitted
by law), if any, on the Notes and performance of all other obligations of the
Company and the Subsidiary Guarantors to the Holders of Notes or the Trustee
under this Indenture and the Notes, according to the terms hereunder or
thereunder, shall be secured as provided in the Security Agreements and the
Subsidiary Guarantees which the Company and the Subsidiary Guarantors have
entered into simultaneously with the execution of this Indenture. Each Holder of
Notes, by its acceptance of the Notes, (i) consents and agrees to the terms of
the Security Agreements as the same may be in effect and may be amended from
time to time in accordance with the terms hereof and thereof, (ii) authorizes
and directs the Trustee and the Collateral Trustee to enter into the Security
Agreements and to perform its obligations and exercise its rights thereunder in
accordance therewith and (iii) appoints the Trustee as Secured Debt
Representative (as such term is defined in the Collateral Agency Agreement) with
respect to the Notes.
Section 12.03. RELEASE OF COLLATERAL.
(a) Subject to subsections (b) and (c) of this Section 12.03, the
Collateral may be released from the Lien created by the Security Agreements as
provided in the Security Agreements or as provided hereby.
50
(b) At any time when an Event of Default shall have occurred and be
continuing and the maturity of the Notes shall have been accelerated (whether by
declaration or otherwise) and the Trustee shall have delivered a notice of
acceleration to the Collateral Trustee, no release of Collateral pursuant to the
provisions of the Security Agreements shall be effective as against the Holders
without the consent of the Required Holders.
(c) To the extent applicable, the Company shall comply with the provisions
of TIA ss. 314(b). To the extent applicable, the Company shall cause TIA ss.
313(b), relating to reports, and TIA ss. 314(d), relating to the release of
property or securities or relating to the substitution therefor of any property
or securities to be subjected to the Lien of the Security Agreements, to be
complied with. Any certificate or opinion required by TIA ss. 314(d) may be made
by an Officer of the Company except in cases where TIA ss. 314(d) requires that
such certificate or opinion be made by an independent Person, which Person will
be an independent engineer, appraiser or other expert selected by the Company
and reasonably satisfactory to the Trustee. Notwithstanding anything to the
contrary in this paragraph, the Company shall not be required to comply with all
or any portion of TIA ss. 314(d) if it determines, in good faith based on advice
of counsel, that under the terms of TIA ss. 314(d) and/or any interpretation or
guidance as to the meaning thereof of the SEC and its staff, including "no
action" letters or exemptive orders, all or any portion of TIA ss. 314(d) is
inapplicable to one or a series of released Collateral. To the extent
applicable, the Company shall furnish to the Trustee, prior to each proposed
release of Collateral pursuant to this Indenture and the Security Agreements:
(1) all documents required by TIA ss. 314(d); and
(2) an Opinion of Counsel to the effect that such
accompanying documents constitute all documents required
by TIA ss. 314(d).
If any Collateral is released in accordance with this Indenture or
any Security Agreement and if the Company has delivered the certificates and
documents required by the Security Agreements and this Section 12.03, the
Trustee, upon receipt of such certificates and Opinion of Counsel, shall notify
the Collateral Trustee of the receipt of such documents.
Section 12.04. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
SECURITY AGREEMENTS.
Subject to the provisions of Article 7 hereof, the Trustee may, in
its sole discretion and without the consent of the Holders, direct, on behalf of
the Holders of Notes, the Collateral Trustee to take all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the
Security Agreements and (b) collect and receive any and all amounts payable in
respect of the obligations of the Company and the Subsidiary Guarantors
hereunder. The Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts that may be unlawful or in violation of the Security Agreements or
this Indenture, and such suits and proceedings as the Trustee may deem expedient
to preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance
51
with, such enactment, rule or order would impair the Collateral Trustee's Liens
on the Collateral or be prejudicial to the interests of the Holders of Notes or
of the Trustee).
Section 12.05. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
SECURITY AGREEMENTS.
The Trustee is authorized to receive any funds for the benefit of
the Holders distributed under the Security Agreements and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture.
Section 12.06. TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all obligations of the Company under
this Indenture and the Notes, or upon Legal Defeasance, the Trustee shall, upon
receipt of an Officer's Certificate of the Company, deliver an instruction to
the Collateral Trustee stating that such obligations have been paid in full, and
instruct the Collateral Trustee to release the Liens of the Trustee and the
Holders pursuant to this Indenture and the Security Agreements.
Section 12.07. ENFORCEMENT OF SECURITY INTERESTS.
The enforcement of the Collateral Trustee's Lien on the Collateral
shall be governed by the Collateral Agency Agreement.
ARTICLE XIII.
SUBORDINATION OF NOTES
Section 13.01. NOTE SUBORDINATE TO SENIOR DEBT
The Company covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article and in the Collateral Agency
Agreement, the Indebtedness represented by the Notes and the payment of the
principal and interest on each and all of the Notes or on account of the
redemption of the Notes are hereby expressly made subordinate and subject in
right of payment to the payment in full in cash of all Obligations in respect of
Senior Debt, and that such subordination is for the benefit of and enforceable
by the holders of Senior Debt as and to the extent provided in the Collateral
Agency Agreement.
The expressions "prior payment in full", "payment in full", "paid in
full" and any other similar term or phrase when used in this Article XIII with
respect to Senior Debt shall have the meaning provided in the Collateral Agency
Agreement.
Section 13.02. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT
Subject to the payment in full in cash of all Obligations in respect
of Senior Debt, the Holders of the Notes shall be subrogated to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of and
interest on the Notes shall be paid in full. For purposes of such
52
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Notes 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 Debt by Holders of the Notes or the Trustee, shall, as among the Company,
its creditors other than holders of Senior Debt and the Holders of the Notes, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
Section 13.03. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Notes is intended to or shall
(a) impair, as among the Company, its creditors other than holders of Senior
Debt and the Holders of the Notes, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Notes the principal of
and any premium and interest on the Notes as and when the same shall become due
and payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Notes and creditors of the Company
other than the holders of Senior Debt; or (c) prevent the Trustee or the Holder
of any Note 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 Debt and the Collateral Agency Agreement to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 13.04. TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of a Note by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
Section 13.05. NO WAIVER OF SUBORDINATION PROVISIONS
No right of any present or future holder of any Senior Debt 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 Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Notes to the holders of Senior Debt, 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 Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii)
53
sell, exchange, release or otherwise dispose of or otherwise affect the security
interest (or priority thereof) granted with respect to any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 13.06. 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 Notes. 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 Notes, unless and
until the Trustee shall have received written notice thereof from the Company or
a holder of Senior Debt or from any trustee or other representative of the
Senior Debt therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 7.01, 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 by at
least 12:00 noon New York City time one 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 or interest on
any Note), 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 12:00
noon New York City time one Business Day prior to such date.
Subject to the provisions of Section 7.01, 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 Debt (or a trustee or other
representative therefor) to establish that such notice has been given by a
holder of Senior Debt (or a trustee or other representative therefor). 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 Debt to
participate in any payment or distribution pursuant to this Article XIII, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt 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 XIII, 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 13.07. 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 7.01, and
the Holders of the Notes shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or 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
54
making such payment or distribution, delivered to the Trustee or to the Holders
of Notes, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XIII.
Section 13.08. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT
The Trustee, in its capacity as trustee under this Indenture, shall
not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Notes or to the Company or to any other Person cash,
property or securities to which any holders of Senior Debt shall be entitled by
virtue of this Article or otherwise.
Section 13.09. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; 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 Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Section 13.10. OBLIGATIONS OF COMPANY UNCONDITIONAL.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as among the Company,
its creditors other than holders of Senior Debt and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Notes as and when the same shall become due and
payable in accordance with their terms, or affect the relative rights of the
Holders of the Notes and creditors of the Company other than the holders of
Senior Debt, nor shall anything herein or therein prevent the Trustee or the
Holder of any Notes 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 Debt in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Section 13.11. RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION PROVISIONS
Each Holder by accepting a Note acknowledges and agrees that the
foregoing subordination provisions are, and are intended to be, an inducement
and a consideration to each holder of any Senior Debt, whether such Senior Debt
was created or acquired before or after the issuance of the Notes, to acquire
and continue to hold, or to continue to hold, such Senior Debt and such holder
of Senior Debt shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Debt, and no amendment or modification of the provisions contained herein
shall diminish the rights of such holders of Senior Debt unless such holders
shall have agreed in writing hereto.
[Signatures on following page]
55
SIGNATURES
GOLDEN NORTHWEST ALUMINUM HOLDING COMPANY
By: /s ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
NORTHWEST ALUMINUM TECHNOLOGIES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
NORTHWEST ALUMINUM COMPANY
By: /s /▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
NORTHWEST ALUMINUM SPECIALTIES, INC.
By: /s /▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
NSC SMELTER LLC
By: /s /▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signer
EXHIBIT A
(Face of Note)
==============================================================================
CUSIP/CINS ________
10% Subordinated Secured Notes due 2011
No. [ ] [$ ]
GOLDEN NORTHWEST ALUMINUM HOLDING COMPANY
promises to pay to__________________
or registered assigns,
the principal sum of [$
Dollars on March 31, 2011.
Interest Payment Dates: June 30, September 30, December 31 and March 31.
Record Dates: June 15, September 15, December 15 and March 15.
GOLDEN NORTHWEST ALUMINUM HOLDING COMPANY
BY:_____________________________________
Name:
Title:
This is one of the 10% Subordinated Secured
Notes due 2011 referred to
in the within-mentioned Indenture:
Wilmington Trust Company
as Trustee
By:___________________________
Authorized Signatory
Dated:
==============================================================================
(Back of Note)
10% Subordinated Secured Notes due 2011
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, 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 HEREON 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 SINCE THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.(1)
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE ACT), (B) IT IS A NON-U.S. PURCHASER AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING
OF REGULATION S UNDER THE ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2),
(3) OR (7) OF RULE 501 UNDER THE ACT, AND
----------------------
(1) This legend should only be included if the Note is issued in global form.
A-2
(2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE), ONLY
(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE ACT,
(C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE ACT, (E) TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE ACT THAT IS ACQUIRING THE
NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S, OR TRANSFER AGENT'S, AS APPLICABLE, RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E), OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE
OR TRANSFER AGENT THE NOTES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ISSUED WITHOUT REGISTRATION UNDER THE ACT OF OR ANY STATE SECURITIES LAWS.
THEY MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED FOR VALUE
UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY
TO IT, OR OTHERWISE SATISFIES ITSELF, THAT REGISTRATION IS NOT
REQUIRED.](2)
ALL INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATED TO OTHER
INDEBTEDNESS PURSUANT TO, AND TO THE EXTENT PROVIDED IN, AND THE RIGHTS
OF THE HOLDER OF THIS NOTE OTHERWISE SUBJECT TO THE TERMS OF, THE
COLLATERAL AGENCY, INTERCREDITOR AND SUBORDINATION AGREEMENT DATED AS
OF APRIL 14, 2005, AS THE SAME
----------------------
(2) This legend should only be included if the note is a restricted security.
A-3
MAY BE AMENDED, MODIFIED OR OTHERWISE SUPPLEMENTED FROM TIME TO TIME (THE
"INTERCREDITOR AGREEMENT"), BY AND AMONG GOLDEN NORTHWEST ALUMINUM HOLDING
COMPANY, THE OTHER GRANTORS THE SUBSIDIARIES (AS DEFINED THEREIN), THE
LOAN AGREEMENT AGENT, THE SENIOR SECURED NOTE TRUSTEE, THE BANK OF NEW
YORK, THE SUBORDINATED SECURED NOTE TRUSTEE AND THE COLLATERAL TRUSTEE.
THE TERMS OF THE INTERCREDITOR AGREEMENT ARE HEREBY INCORPORATED BY
REFERENCE INTO THIS INSTRUMENT AS IF SET FORTH IN FULL HEREIN.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Golden Northwest Aluminum Holding Company, a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 10% per annum from April 14, 2005 until the Maturity Date. The
Company will pay interest quarterly on June 30, September 30, December 31 and
March 31 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date") in cash, or may make
an Interest Deferral as provided in and in accordance with the Indenture in
which case such Deferred Interest shall accrue Compounded Interest which shall
be payable on the Maturity Date. Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be June 30, 2005. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal from time to time on demand at a
rate that is 2% per annum in excess of the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law), on overdue installments of interest from time to time on demand
at the same rate to the extent lawful. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the June 15, September 15, December 15 or March 15
next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided
in Section 2.12 of the Indenture with respect to defaulted interest. The Notes
will be payable as to principal and interest at the office or agency of the
Company maintained for such purpose within or without the City and State of New
York, or, at the option of the Company, payment of interest may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest on, all Global Notes and
all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent; provided, however, that as and
to the extent provided in the Indenture, the Company may elect to make an
Interest Deferral. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
A-4
3. PAYING AGENT AND REGISTRAR. Initially, Wilmington Trust Company,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
Neither the Company nor any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of April 14, 2005 ("Indenture") between the Company, the Subsidiary
Guarantors (as defined therein) and the Trustee. The terms of the Notes include
those stated in the Indenture and, to the extent required by applicable law,
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Notes are obligations of the Company limited to
$10,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION. The Notes will be subject to redemption at
any time at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount of Notes to be redeemed, plus accrued and unpaid interest
thereon, to the applicable redemption date.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in minimum denominations of $1 and amounts in excess
thereof. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
8. SECURITY. This Note and the Subsidiary Guarantees are
secured by security interests granted to the Collateral Trustee as provided
in the Collateral Agency Agreement and the other Security Agreements.
9. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
A-5
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Subsidiary Guarantees or the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
principal amount of the then outstanding Notes voting as a single class, and any
existing default or compliance with any provision of the Indenture, the
Subsidiary Guarantees or the Notes may be waived with the consent of the Holders
of a majority in principal amount of the then outstanding Notes voting as a
single class. Without the consent of any Holder of a Note, the Indenture, the
Subsidiary Guarantees or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's or Subsidiary Guarantor's obligations to Holders of the Notes in
case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, or to allow any
Subsidiary Guarantor to execute a supplemental indenture to the Indenture and/or
a Subsidiary Guarantee with respect to the Notes, to provide for the issuance of
Notes in payment of interest in lieu of Interest Deferral and to make all
changes resulting therefrom or to amend the Collateral Agency Agreement in
connection with any refinancing of the existing Loan Agreement.
11. DEFAULTS AND REMEDIES. Events of Default include: (i) default
in the payment when due of principal of or interest on the Notes if such default
is not cured by the Company within ten (10) days after the Trustee or Required
Holders have given the Company written notice of such default; (ii) failure by
the Company or any of its Subsidiaries to comply with certain covenants set
forth in the Indenture or failure by the Company or any of its Subsidiaries for
30 days after notice to comply with certain other agreements in the Indenture or
the Notes; (iii) default under certain other agreements relating to Indebtedness
of the Company which default results in the acceleration of such Indebtedness
prior to its express maturity; (iv) certain events of bankruptcy or insolvency
with respect to the Company or any of its Subsidiaries (other than the NWED
Entities); and (v) except as permitted by the Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable or
invalid or shall cease for any reason to be in full force and effect or any
Subsidiary Guarantor or any Person acting on its behalf shall deny or disaffirm
its obligations under such Subsidiary Guarantor's Subsidiary Guarantee. If any
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Except as otherwise provided in the Indenture, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of interest on,
or the principal of, the Notes. The Company is required to deliver to the
A-6
Trustee annually a statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.
12. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or any of the Subsidiary Guarantors,
as such, shall not have any liability for any obligations of the Company or such
Subsidiary Guarantor under the Notes, the Subsidiary Guarantees or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
14. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Golden Northwest Aluminum Holding Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:__________
Your Signature:_________________________
(Sign exactly as your name appears on the
face of this Note)
A-8
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term includes
any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject
to the provisions in the Indenture dated as of April 14, 2005 (the "Indenture")
among Golden Northwest Aluminum Holding Company, the Subsidiary Guarantors
signatory thereto and who subsequently execute and deliver Supplemental
Indentures pursuant to the Indenture and, Wilmington Trust Company, as trustee
(the "Trustee"), (a) the due and punctual payment of the principal of and
interest on the Notes (as defined in the Indenture), whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and, to the extent permitted by law, interest, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Subsidiary
Guarantors to the Holders of Notes and to the Trustee pursuant to the Subsidiary
Guarantees and the Indenture are expressly set forth in Article X of the
Indenture and reference is hereby made to the Indenture for the precise terms of
the Subsidiary Guarantees.
NORTHWEST ALUMINUM TECHNOLOGIES, LLC
By:_________________________________
Name:
Title:
NORTHWEST ALUMINUM COMPANY
By:_________________________________
Name:
Title:
B-1
NORTHWEST ALUMINUM SPECIALTIES, INC.
By:_____________________________________
Name:
Title:
NSC SMELTER LLC
By:_____________________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
______________________ by and among (the "Guaranteeing Subsidiary"), a
subsidiary of Golden Northwest Aluminum Holding Company (or its permitted
successor), a Delaware corporation (the "Company"), the Company, the other
Subsidiary Guarantors (as defined in the Indenture referred to herein) and
Wilmington Trust Company, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of April 14, 2005 providing for
the issuance of an aggregate principal amount of $10,000,000 of 10% Subordinated
Secured Notes due 2011 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all Subsidiary Guarantors named in the Indenture,
to jointly and severally Guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on
the overdue principal of and interest on the Notes, if
any, if lawful, and all other obligations of the
C-1
Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal
of any Notes or any of such other obligations, that same
will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever
reason, the Subsidiary Guarantors shall be jointly and
severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes or
the Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and
all demands whatsoever.
(d) This Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes
and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Subsidiary Guarantors,
or any Custodian, Trustee, liquidator or other similar
official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by any of them to the
Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full
force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right
of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as
provided in Article VI of the Indenture for the purposes of
this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in
the event of any
C-2
declaration of acceleration of such obligations as provided in
Article VI of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the
Subsidiary Guarantors for the purpose of this Subsidiary
Guarantee.
(h) 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 the Subsidiary Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and
fixed liabilities that are relevant under any applicable
Bankruptcy Law or fraudulent conveyance laws, and, to the
extent relevant, after giving effect to any collections from,
rights to receive contribution from or payments made by or on
behalf of any other Subsidiary Guarantor in respect of the
obligations of such other Subsidiary Guarantor under Article X
of the Indenture, the Subsidiary Guarantee shall not result in
the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee constituting a fraudulent transfer or
conveyance or being improper or prohibited under applicable
state law.
3. Execution and Delivery. Each Guaranteeing Subsidiary agrees that
the Subsidiary Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Subsidiary Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) The Guaranteeing Subsidiary may not consolidate with or merge
with or into (whether or not such Subsidiary Guarantor is the
surviving Person) another Person whether or not affiliated
with such Subsidiary Guarantor unless:
(i) subject to Section 10.04 of the Indenture, the Person
formed by or surviving any such consolidation or merger
(if other than a Subsidiary Guarantor or the Company)
unconditionally assumes all the obligations of such
Subsidiary Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory
to the Trustee, under the Notes, the Indenture and the
Subsidiary Guarantee on the terms set forth herein or
therein; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Subsidiary
Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the
Indenture to be performed by the Subsidiary Guarantor, such
successor
C-3
corporation shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been
named herein as a Subsidiary Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the
Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under the Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the
execution hereof.
(c) Except as set forth in Articles IV and V of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained
in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into
the Company or another Subsidiary Guarantor, or shall prevent
any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety to
the Company or another Subsidiary Guarantor.
5. Releases
(a) In the event of a sale or other disposition of all of the
assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of
all the capital stock of any Subsidiary Guarantor, then such
Subsidiary Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of
all of the capital stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of
such Subsidiary Guarantor) will be released and relieved of
any obligations under its Subsidiary Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied
in accordance with the applicable provisions of the Indenture.
Upon delivery by the Company to the Trustee of an Officer's
Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of any Subsidiary Guarantor from its
obligations under its Subsidiary Guarantee.
(b) Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the
full amount of principal of and interest on the Notes and for
the other obligations of any Subsidiary Guarantor under the
Indenture as provided in Article X of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have
C-4
any liability for any obligations of the Company or any Guaranteeing Subsidiary
under the Notes, any Subsidiary Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC Commission that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10 The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:
_______________________________________
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as Trustee
By:____________________________________
Name:
Title:
C-5
EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER
Golden Northwest Aluminum Holding Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
One ▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: 10% Subordinated Secured Notes due 2011
---------------------------------------
Reference is hereby made to the Indenture, dated as of April 14,
2005 (the "Indenture"), among Golden Northwest Aluminum Holding Company, as
issuer (the "Company"), the Subsidiary Guarantors (as defined therein) and
Wilmington Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
_________________________ (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $________ in such Note[s] or interests (the "Transfer"),
to _____________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in a
Restricted Definitive Note Pursuant to Rule 144A.
-----------------------------------------------------------------------
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
Restricted Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the Restricted Definitive Note
for its own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred Restricted Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Definitive Note and in the Indenture and the
Securities Act.
2. Check if Transferee will take delivery of a Restricted Definitive Note
pursuant to Regulation S.
-------------------------------------------------------------------------
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a Person in the
United States and (x) at the time the buy order
D-1
was originated, the Transferee was outside the United States or such Transferor
and any Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and
neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of 40 days after the issuance of the Note, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person. Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred Restricted Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Restricted Definitive Note and in the Indenture and the
Securities Act.
3. Check and complete if Transferee will take delivery of a Restricted
Definitive Note pursuant to any provision of the Securities Act other than Rule
144A or Regulation S.
-------------------------------------------------------------------------------
The Transfer is being effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act and any applicable blue sky securities laws of any state of
the United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a Subsidiary
thereof;
or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the
Transfer complies with the transfer restrictions applicable to Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit F to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred Restricted Definitive Note will be
subject to the restrictions on transfer
D-2
enumerated in the Private Placement Legend printed Restricted the Definitive
Notes and in the Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in a Global
Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred Restricted Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Notes and in the
Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred Restricted
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Definitive
Notes and in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred Restricted
Definitive Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Notes and
in the Indenture.
D-3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
_________________________________________
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:_________, _____
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the Global Note (CUSIP __); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
D-4
EXHIBIT E
FORM OF CERTIFICATE OF EXCHANGE
Golden Northwest Aluminum Holding Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
One ▇▇▇▇▇▇ Square
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: 10 % Subordinated Secured Notes due 2011
----------------------------------------
(CUSIP_____________)
Reference is hereby made to the Indenture, dated as of April 14,
2005 (the "Indenture"), among Golden Northwest Aluminum Holding Company, as
issuer (the "Company"), the Subsidiary Guarantors (as defined therein) and
Wilmington Trust Company as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
______________ (the "Owner") owns and proposes to exchange the
Note[s] specified herein, in the principal amount of $ __________ in such
Note[s] (the "Exchange"). In connection with the Exchange, the Owner hereby
certifies that:
1. Exchange of Restricted Definitive Notes for Unrestricted Definitive Notes or
Beneficial Interests in an Unrestricted Global Note
(a) Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Global Note.
-----------------------------------------------------------------------
In connection with the Owner's Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(b) Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note.
-----------------------------------------------------------------------
In connection with the Owner's Exchange of a Restricted Definitive Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain
E-1
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2. Exchange of Restricted Definitive Notes for Restricted Definitive Notes
(a) Check if Exchange is from Restricted Definitive Note to a
Restricted Definitive Note.
-------------------------------------------------------------------------
In connection with the Exchange of the Owner's Restricted Definitive Note for a
Restrictive Definitive Note or Notes with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Notes and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
________________________________
[Insert Name of Owner]
By:_______________________________________
Name:
Title:
Dated: _______________, _____
E-2
EXHIBIT F
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Golden Northwest Aluminum Holding Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Wilmington Trust Company
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Re: 10 % Subordinated Secured Notes due 2011
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Reference is hereby made to the Indenture, dated as of April 14,
2005 (the "Indenture"), among Golden Northwest Aluminum Holding Company, as
issuer (the "Company"), the Subsidiary Guarantors (as defined therein) and
Wilmington Trust Company, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $______________
aggregate principal amount of a Restricted Definitive Note, we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein 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 the Notes or any
interest therein, 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 and an Opinion
of Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United States
in accordance with Rule 903 or Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) 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 the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
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3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, 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 Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) 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 Notes, 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 Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
____________________________________
[Insert Name of Accredited Investor]
By:____________________________________
Name:
Title:
Dated: _______________, _____
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