EXHIBIT 4.1
================================================================================
CENTURY ALUMINUM
COMPANY,
as Issuer
the GUARANTORS party hereto
and
WILMINGTON TRUST
COMPANY,
as Trustee
------------------------------
Indenture
Dated as of August 26, 2004
------------------------------
7 1/2% Senior Notes
Due 2014
================================================================================
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
------------ ------------------
Section 310 (a)........................................................... 7.10
(b)........................................................... 7.03, 7.08
Section 311 .............................................................. 7.03
Section 312 (a)........................................................... 11.02
Section 313 (a)...........................................................
Section (b)...........................................................
Section (c)........................................................... 7.05, 7.06
Section 314 (a)........................................................... 4.17
(b)........................................................... 4.18
Section 315 (a)........................................................... 7.02
(b)........................................................... 7.02
(c)........................................................... 7.01, 7.02
(d)........................................................... 7.02
(e)........................................................... 7.02
Section 316 (a)........................................................... 2.05
(c)........................................................... 11.02
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions....................................................... 1
Section 1.02. Rules of Construction............................................. 29
ARTICLE 2
THE NOTES
Section 2.01. Form, Dating and Denominations 144A, Reg. S; Legends.............. 29
Section 2.02. Execution and Authentication; Exchange Notes; Additional Notes.... 30
Section 2.03. Registrar, Paying Agent and Authenticating Agent; Paying Agent
to Hold Money in Trust.......................................... 31
Section 2.04. Replacement Notes................................................. 32
Section 2.05. Outstanding Notes................................................. 32
Section 2.06. Temporary Notes................................................... 33
Section 2.07. Cancellation...................................................... 33
Section 2.08. CUSIP and CINS Numbers............................................ 34
Section 2.09. Registration, Transfer and Exchange............................... 34
Section 2.10. Restrictions on Transfer and Exchange............................. 37
ARTICLE 3
REDEMPTION, OFFER TO PURCHASE
Section 3.01. Optional Redemption............................................... 39
Section 3.02. Redemption with Proceeds of Public Equity Offering................ 39
Section 3.03. Method and Effect of Redemption................................... 39
Section 3.04. Offer to Purchase................................................. 41
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.................................................. 43
Section 4.02. Maintenance of Office or Agency................................... 44
Section 4.03. Existence......................................................... 44
Section 4.04. Payment of Taxes and Other Claims................................. 45
Section 4.05. Maintenance of Properties and Insurance........................... 45
Section 4.06. Limitation on Debt and Disqualified or Preferred Stock............ 45
Section 4.07. Limitation on Restricted Payments................................. 49
Section 4.08. Limitation on Liens............................................... 53
Section 4.09. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries......................................... 53
Section 4.10. Limitation on Sale or Issuance of Equity Interests of
Restricted Subsidiaries......................................... 55
Section 4.11. Guaranties by Restricted Subsidiaries............................. 56
Section 4.12. Repurchase of Notes upon a Change of Control...................... 56
Section 4.13. Limitation on Asset Sales......................................... 56
Section 4.14. Limitation on Transactions with Shareholders and Affiliates....... 58
Section 4.15. Line of Business.................................................. 60
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries........... 60
Section 4.17. Financial Reports................................................. 61
Section 4.18. Reports to Trustee................................................ 62
Section 4.19. Limitation on Applicability of Certain Sections if Notes Rated
Investment Grade................................................ 63
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.01. Consolidation, Merger or Sale of Assets by the Company; No
Lease of All or Substantially All Assets........................ 63
Section 5.02. Consolidation, Merger or Sale of Assets by a Guarantor............ 64
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Events of Default................................................. 65
Section 6.02. Acceleration...................................................... 67
Section 6.03. Other Remedies.................................................... 67
Section 6.04. Waiver of Past Defaults........................................... 68
Section 6.05. Control by Majority............................................... 68
Section 6.06. Limitation on Suits............................................... 68
Section 6.07. Rights of Holders to Receive Payment.............................. 68
Section 6.08. Collection Suit by Trustee........................................ 69
Section 6.09. Trustee May File Proofs of Claim.................................. 69
Section 6.10. Priorities........................................................ 69
Section 6.11. Restoration of Rights and Remedies................................ 70
Section 6.12. Undertaking for Costs............................................. 70
Section 6.13. Rights and Remedies Cumulative.................................... 70
Section 6.14. Delay or Omission Not Waiver...................................... 70
Section 6.15. Waiver of Stay, Extension or Usury Laws........................... 71
ARTICLE 7
THE TRUSTEE
Section 7.01. General........................................................... 71
ii
Section 7.02. Certain Rights of Trustee......................................... 71
Section 7.03. Individual Rights of Trustee...................................... 73
Section 7.04. Trustee's Disclaimer.............................................. 73
Section 7.05. Notice of Default................................................. 73
Section 7.06. Reports by Trustee to Holders..................................... 74
Section 7.07. Compensation and Indemnity........................................ 74
Section 7.08. Replacement of Trustee............................................ 75
Section 7.09. Successor Trustee by Merger....................................... 76
Section 7.10. Eligibility....................................................... 76
Section 7.11. Money Held in Trust............................................... 76
ARTICLE 8
DEFEASANCE AND DISCHARGE
Section 8.01. Discharge of Company's Obligations................................ 76
Section 8.02. Legal Defeasance.................................................. 77
Section 8.03. Covenant Defeasance............................................... 79
Section 8.04. Application of Trust Money........................................ 79
Section 8.05. Repayment to Company.............................................. 79
Section 8.06. Reinstatement..................................................... 80
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Amendments without Consent of Holders............................. 80
Section 9.02. Amendments with Consent of Holders................................ 81
Section 9.03. Effect of Consent................................................. 82
Section 9.04. Trustee's Rights and Obligations.................................. 82
Section 9.05. Conformity with Trust Indenture Act............................... 83
Section 9.06. Payments for Consents............................................. 83
ARTICLE 10
GUARANTIES
Section 10.01. The Guaranties.................................................... 83
Section 10.02. Guaranty Unconditional............................................ 83
Section 10.03. Discharge; Reinstatement.......................................... 84
Section 10.04. Waiver by the Guarantors.......................................... 84
Section 10.05. Subrogation and Contribution...................................... 84
Section 10.06. Stay of Acceleration.............................................. 84
Section 10.07. Limitation on Amount of Guaranty.................................. 85
Section 10.08. Execution and Delivery of Guaranty................................ 85
Section 10.09. Release of Guaranty............................................... 85
iii
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act of 1939...................................... 86
Section 11.02. Noteholder Communications; Noteholder Actions.................... 86
Section 11.03. Notices.......................................................... 87
Section 11.04. Certificate and Opinion as to Conditions Precedent............... 88
Section 11.05. Statements Required in Certificate or Opinion.................... 88
Section 11.06. Payment Date Other than a Business Day........................... 88
Section 11.07. Governing Law.................................................... 88
Section 11.08. No Adverse Interpretation of Other Agreements.................... 89
Section 11.09. Successors....................................................... 89
Section 11.10. Duplicate Originals.............................................. 89
Section 11.11. Separability..................................................... 89
Section 11.12. Table of Contents and Headings................................... 89
Section 11.13. No Liability of Directors, Officers, Employees,
Incorporators and Stockholders................................. 89
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Supplemental Indenture
EXHIBIT C Restricted Legend
EXHIBIT D DTC Legend
EXHIBIT E Regulation S Certificate
EXHIBIT F Rule 144A Certificate
EXHIBIT G Institutional Accredited Investor Certificate
iv
INDENTURE, dated as of August 26, 2004, among Century Aluminum Company,
a Delaware corporation, as the Company, the Guarantors party hereto and
Wilmington Trust Company, a Delaware banking corporation, as Trustee.
RECITALS
The Company has duly authorized the execution and delivery of the
Indenture to provide for the issuance of up to $250,000,000 aggregate principal
amount of the Company's 7 1/2% Senior Notes Due 2014, and if any when issued,
any Additional Notes together with any Exchange Notes issued therefor, as
provided herein (the "NOTES"). All things necessary to make the Indenture a
valid agreement of the Company, in accordance with its terms, have been done,
and the Company has done all things necessary to make the Notes (in the case of
the Additional Notes, when duly authorized), when executed by the Company and
authenticated and delivered by the Trustee under this Indenture and duly issued
by the Company, the valid obligations of the Company as hereinafter provided.
In addition, the Guarantors party hereto have duly authorized the
execution and delivery of the Indenture as guarantors of the Notes. All things
necessary to make the Indenture a valid agreement of each Guarantor, in
accordance with its terms, have been done, and each Guarantor has done all
things necessary to make the Note Guaranties, when the Notes are executed by the
Company and authenticated and delivered by the Trustee under this Indenture and
duly issued by the Company, the valid obligations of such Guarantor as
hereinafter provided.
This Indenture is subject to, and will be governed by, the provisions
of the Trust Indenture Act that are required to be a part of and govern
indentures qualified under the Trust Indenture Act.
THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, the parties hereto covenant and agree, for the equal and
proportionate benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"ACQUIRED DEBT" means (i) Debt of a Person existing at the time the
Person merges with or into or becomes a Restricted Subsidiary or (ii) Debt
incurred as an assumed liability in connection with the acquisition of related
assets, in each case not Incurred in connection with, or in contemplation of,
the Person merging with or into or becoming a Restricted Subsidiary or the
assets being acquired.
"ADDITIONAL INTEREST" means additional interest owed to the Holders
pursuant to the Registration Rights Agreement.
"ADDITIONAL NOTES" means any Notes issued under the Indenture in
addition to the Original Notes, including any Exchange Notes issued in exchange
for such Additional Notes, having the same terms in all respects as the Original
Notes or the same terms in all respects except with respect to interest paid or
payable on or prior to the first Interest Payment Date after the issuance of
such Additional Notes.
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENT" means any Registrar, Paying Agent or Authenticating Agent.
"AGENT MEMBER" means a member of, or a participant in, the Depositary.
"ASSET SALE" means any sale, lease (other than operating leases entered
into in the ordinary course of business), transfer or other disposition of any
assets by the Company or any Restricted Subsidiary, including by means of a
merger, consolidation or similar transaction or Sale and Leaseback Transaction
and including any sale or issuance of Equity Interests of any Restricted
Subsidiary (each of the above referred to as a "DISPOSITION"), provided that the
following are not included in the definition of "Asset Sale":
(1) a disposition to the Company or a Wholly Owned
Restricted Subsidiary, including the sale or issuance by the Company or
any Restricted Subsidiary of any Equity Interests of any Restricted
Subsidiary to the Company or any Wholly Owned Restricted Subsidiary;
(2) (A)the disposition by the Company or any Restricted
Subsidiary in the ordinary course of business of (i)cash and cash
management investments, (ii)inventory or other assets acquired or
produced and held for sale or resale in the ordinary course of
business, or (iii)rights granted to others pursuant to leases,
subleases or licenses and
2
(B) the disposition by the Company of Century Aluminum of Kentucky LLC
of power in the ordinary course of business;
(3) the sale or discount of accounts receivable
(including receivables due from Affiliates) arising in the ordinary
course of business in connection with the compromise or collection
thereof;
(4) a transaction that is governed by Section 5.01;
(5) a Restricted Payment permitted under Section 4.07 or
a Permitted Investment;
(6) any disposition in a transaction or series of related
transactions of assets with a fair market value of less than $5.0
million;
(7) any disposition of Equity Interests of an
Unrestricted Subsidiary;
(8) the granting of a Lien, other than in connection with
a Sale and Leaseback Transaction, if the Lien is granted in compliance
with Section 4.08;
(9) any disposition of (a) any part or all of the equity
ownership of Century Aluminum of West Virginia, or any part or all of
its assets, or (b) any Equity Interests of any Joint Venture that is
not a Restricted Subsidiary; provided that the disposition is for fair
market value, as determined in good faith by the Board of Directors,
and any Net Cash Proceeds from such disposition (treated as if it was
an Asset Sale) shall be applied as set forth under paragraphs (c) and
(d) of Section 4.13; and
(10) the settlement or termination of any Hedging
Agreement.
"ATTRIBUTABLE DEBT" means, in respect of a Sale and Leaseback
Transaction, the present value, discounted at the interest rate implicit in the
Sale and Leaseback Transaction, of the total obligations of the lessee for
rental payments during the remaining term of the lease in the Sale and Leaseback
Transaction.
"AUTHENTICATING AGENT" refers to a Person engaged to authenticate the
Notes in the stead of the Trustee.
"AVERAGE LIFE" means, with respect to any Debt, the quotient obtained
by dividing (i) the sum of the products, determined for each scheduled principal
payment of such Debt occurring after the date of determination, of (x) the
number of years from the date of determination to the date of such principal
payment, and
3
(y) the amount of such principal payment by (ii) the sum of all such principal
payments.
"BANKRUPTCY DEFAULT" has the meaning assigned to such term in
Section 6.01.
"BOARD OF DIRECTORS" means the board of directors or comparable
governing body of the Company, or any committee thereof duly authorized to act
on its behalf.
"BOARD RESOLUTION" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors which, as of the date of any certification thereof, remains in full
force and effect.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City or in the city where the Corporate Trust
Office of the Trustee is located are authorized by law to close.
"CAPITAL LEASE" means, with respect to any Person, any lease of any
property which, in conformity with GAAP, is required to be capitalized on the
balance sheet of such Person.
"CAPITAL STOCK" means, with respect to any Person, any and all shares
of stock of a corporation, partnership interests or other equivalent interests
(however designated, whether voting or non-voting) in such Person's equity,
entitling the holder to receive a share of the profits and losses, and a
distribution of assets, after liabilities, of such Person.
"CASH EQUIVALENTS" means
(1) United States dollars, or money in other currencies
received in the ordinary course of business,
(2) U.S. Government Obligations and obligations of any
agency of the U.S. Government rated AAA by S&P and Aaa by ▇▇▇▇▇'▇ at
the time of acquisition, in each case with maturities not exceeding one
year from the date of acquisition,
(3) (i) demand deposits, (ii) time deposits and
certificates of deposit with maturities of one year or less from the
date of acquisition, (iii) bankers' acceptances with maturities not
exceeding one year from the date of acquisition, and (iv) overnight
bank deposits, in each case with any bank or trust company organized or
licensed under the laws of the United States or any state thereof
having capital, surplus and undivided profits in
4
excess of $500 million whose short-term debt is rated "A-2" or higher
by S&P or "P-2" or higher by ▇▇▇▇▇'▇,
(4) repurchase obligations with a term of not more than
seven days for underlying securities of the type described in clauses
(2) and (3) above entered into with any financial institution meeting
the qualifications specified in clause (3) above,
(5) commercial paper rated at least P-1 by ▇▇▇▇▇'▇ or A-1
by S&P at the time of acquisition and maturing within six months after
the date of acquisition,
(6) money market funds at least 95% of the assets of
which consist of investments of the type described in clauses (1)
through (5) above, and
(7) in the case of a Foreign Restricted Subsidiary,
substantially similar investments made in the ordinary course of
business and denominated in the currency of any location where the
Foreign Restricted Subsidiary conducts business.
"CERTIFICATED NOTE" means a Note in registered individual form without
interest coupons.
"CHANGE OF CONTROL" means:
(1) the merger or consolidation of the Company with or
into another Person or the merger of another Person with or into the
Company, or the sale of all or substantially all the assets of the
Company to another Person, (in each case, unless such other Person is a
Permitted Holder) unless holders of a majority of the aggregate voting
power of the Voting Stock of the Company, immediately prior to such
transaction, hold securities of the surviving or transferee Person that
represent, immediately after such transaction, at least a majority of
the aggregate voting power of the Voting Stock of the surviving or
transferee Person;
(2) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is or becomes the "beneficial owner" (as such term
is used in Rule 13d-3 under the Exchange Act), directly or indirectly,
of more than 40% of the total voting power of the Voting Stock of the
Company (other than through the creation of a holding company for the
Company that does not involve a change in the beneficial ownership of
the Company as a result of the transaction); provided that indirect
beneficial ownership of more than 40% of the total voting power of the
Voting Stock
5
of the Company through direct or indirect ownership of Voting Stock or
Capital Stock of Glencore by (a) the then-current or former officers or
employees of Glencore or any of its Subsidiaries (the "GLENCORE
EMPLOYEES") and/or (b) by any Person controlled by the Glencore
Employees shall not be deemed to constitute a Change of Control if the
composition of the Glencore Employees continues to be comprised in a
manner consistent with the manner in which it is comprised on the Issue
Date;
(3) at any time during any period of two consecutive
years after the Issue Date, individuals who at the beginning of any
such period constituted the board of directors of the Company, together
with any new directors whose election by the board of directors or
whose nomination for election by the stockholders of the Company was
approved by a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority of the board of directors of the
Company then in office; or
(4) the adoption of a plan relating to the liquidation or
dissolution of the Company.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means Capital Stock not entitled to any preference on
dividends or distributions, upon liquidation or otherwise.
"COMPANY" means the party named as such in the first paragraph of the
Indenture or any successor obligor under the Indenture and the Notes pursuant to
Section 5.01.
"CONSOLIDATED NET INCOME" means, for any period, the aggregate net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP, provided that the
following (without duplication) will be excluded in computing Consolidated Net
Income:
(1) the net income (or loss) of any Person that is not a
Restricted Subsidiary or is accounted for by the equity method of
accounting, except to the extent of the lesser of
(x) the dividends or other distributions
actually paid in cash to the Company or any of its Restricted
Subsidiaries (subject to clause (3) below) by such Person
during such period, and
6
(y) the Company's pro rata share of such
Person's net income earned during such period;
(2) any net income (or loss) of any Person acquired in a
pooling of interests transaction for any period prior to the date of
such acquisition;
(3) the net income (or loss) of any Restricted Subsidiary
(other than Nordural and any Nordural Holding Company) to the extent
that the declaration or payment of dividends or similar distributions
by such Restricted Subsidiary of such net income would not have been
permitted for the relevant period by charter or by any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary (provided that any
loss of such Person for the relevant period shall be included in
calculating Consolidated Net Income to the extent of the amount of cash
Investments in such Person (whether by loan, capital contribution or
otherwise) made during the relevant period by the Company or any of its
other Restricted Subsidiaries), provided further that if the
declaration or payment of dividends or similar distributions by any
Restricted Subsidiary would have been permitted at the end of the
relevant period, the net income of such Restricted Subsidiary shall be
included for the entire relevant period;
(4) any net after-tax gains and losses attributable to
Asset Sales;
(5) any net after-tax extraordinary gains and losses
determined in accordance with GAAP and any gains or losses in
connection with the early retirement of Debt;
(6) the cumulative effect of a change in accounting
principles;
(7) any after-tax amortization expense attributable to
the Agreement for Electric Service dated July 15, 1998 with Green River
Company related to the Company's Hawesville aluminum reduction facility
to the extent that such expense represents amortization of the value
attributed thereto in connection with the purchase of the Hawesville
facility by the Company or its Restricted Subsidiaries;
(8) any after-tax non-cash losses or gains, determined in
accordance with GAAP, relating to Hedging Agreements until such time as
such agreements are settled (at which time such losses or gains shall
be included);
7
(9) any after-tax non-cash losses or gains related to the
write-up or write-down of inventory to reflect a change in market value
of such inventory until such time as such inventory is sold (at which
time such losses or gains shall be included); and
(10) any amortization of debt issuance costs excluded from
Interest Expense.
"CONSOLIDATED NET WORTH" means, at any date of determination, the
consolidated stockholders' equity of the Company and its Restricted
Subsidiaries, calculated excluding
(1) any amounts attributable to Disqualified Stock,
(2) treasury stock,
(3) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of a
going concern business made in accordance with GAAP as a result of the
acquisition of such business) subsequent to the Issue Date in the book
value of any asset, and
(4) the cumulative effect of a change in accounting
principles.
"CONVERTIBLE NOTES" means the Company's 1.75% Convertible Senior Notes
due 2024.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee is principally administered, which at
the date of the Indenture is located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"CREDIT AGREEMENT" means the credit agreement dated as of April 2, 2001
among the Company, the lenders and agents party thereto and Fleet Capital
Corporation, as administrative and documentation agent, together with any
related documents (including any security documents and guarantee agreements),
as such agreement may be amended, modified, supplemented, extended, renewed,
refinanced or replaced or substituted from time to time, including any
subsequent refinancings, replacements or substitutions.
"DEBT" means, with respect to any Person, without duplication,
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
8
(3) all obligations of such Person in respect of letters
of credit, bankers' acceptances or other similar instruments, excluding
obligations in respect of trade letters of credit or bankers'
acceptances issued in respect of trade payables to the extent not drawn
upon or presented, or, if drawn upon or presented, the resulting
obligation of the Person is paid within three Business Days;
(4) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services to the extent
recorded as liabilities under GAAP, excluding trade payables arising in
the ordinary course of business;
(5) all obligations of such Person as lessee under
Capital Leases and all Attributable Debt;
(6) all Debt of other Persons Guaranteed by such Person
(including by securing such Debt by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person) to the extent so
Guaranteed, other than a Limited Recourse Guaranty; and
(7) all obligations of such Person under Hedging
Agreements.
The amount of Debt on any date of determination of any Person under clauses (1)
through (7) will be deemed to be:
(A) with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the
obligation;
(B) with respect to Debt secured by a Lien on an asset of
such Person but not otherwise the obligation, contingent or otherwise,
of such Person, the lesser of (x) the fair market value of such asset
on the date the Lien attached and (y) the amount of such Debt;
(C) with respect to any Debt issued with original issue
discount, the face amount of such Debt less the remaining unamortized
portion of the original issue discount of such Debt;
(D) with respect to any Hedging Agreements, the net
amount payable, if any, by such Person, if such Hedging Agreement
terminated at that time due to default by such Person; and
(E) otherwise, the outstanding principal amount thereof.
The principal amount of any Debt or other obligation that is
denominated in any currency other than United States dollars (after giving
effect to any
9
Hedging Agreement in respect thereof) shall be the amount thereof, as determined
pursuant to the foregoing sentence, converted into United States dollars at the
Spot Rate in effect on the date of determination. For this purpose, "SPOT RATE"
shall mean, for any currency, the spot rate at which that currency is offered
for sale against United States dollars as published in The Wall Street Journal
on the business day immediately preceding the date of determination or, if that
rate is not available in that publication, as determined in any publicly
available source of similar market data.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means the depositary of each Global Note, which will
initially be DTC.
"DISINTERESTED DIRECTORS" has the meaning assigned to such term in
Section 4.14.
"DISQUALIFIED EQUITY INTERESTS" means Equity Interests that by their
terms or upon the happening of any event are
(1) required to be redeemed or redeemable at the option
of the holder prior to the Stated Maturity of the Notes for
consideration other than Qualified Equity Interests, or
(2) convertible at the option of the holder into
Disqualified Equity Interests or exchangeable for Debt;
provided that Equity Interests will not constitute Disqualified Equity Interests
solely because of provisions giving holders thereof the right to require
repurchase or redemption upon an "asset sale" or "change of control" occurring
prior to the Stated Maturity of the Notes if those provisions
(A) are no more favorable to the holders than Section
4.12 and Section 4.13, and
(B) specifically state that repurchase or redemption
pursuant thereto will not be required prior to the Company's repurchase
of the Notes as required by the Indenture.
"DISQUALIFIED STOCK" means Capital Stock constituting Disqualified
Equity Interests.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted Subsidiary formed
under the laws of, or 50% or more of the assets of which are located in, the
United States of America or any jurisdiction thereof.
10
"DTC" means The Depository Trust Company, a New York corporation, and
its successors.
"DTC LEGEND" means the legend set forth in Exhibit D.
"EBITDA" means, for any period, the sum of:
(1) Consolidated Net Income, plus, in each case, without
duplication:
(2) to the extent deducted in calculating Consolidated
Net Income, Fixed Charges, plus
(3) to the extent deducted in calculating Consolidated
Net Income and as determined on a consolidated basis for the Company
and its Restricted Subsidiaries in conformity with GAAP:
(A) income taxes, other than income taxes or
income tax adjustments (whether positive or negative)
attributable to Asset Sales, extraordinary gains or losses or
gains or losses in connection with the early retirement of
Debt; and
(B) depreciation, amortization and all other
non-cash items reducing Consolidated Net Income (not including
non-cash charges in a period which reflect cash expenses paid
or to be paid in another period), less all non-cash items
increasing Consolidated Net Income (not including non-cash
items in a period which reflects cash income received or to be
received in another period);
provided that, with respect to any Restricted Subsidiary, such items
(2) and (3) (A) and (B) will be added only to the extent and in the
same proportion that the relevant Restricted Subsidiary's net income
was included in calculating Consolidated Net Income.
"ENVIRONMENTAL LAWS" means any federal, state, local or foreign law
(including common law), treaty, judicial decision, regulation, rule, judgment,
order, decree, injunction, permit, or governmental restriction or requirement,
or any written agreement with any governmental authority, whether now or
hereafter in effect, relating to human health and safety, the environment or to
pollutants, contaminants, wastes or chemicals or any toxic, radioactive,
ignitable, corrosive, reactive or otherwise hazardous substances, wastes or
materials.
"EQUITY INTERESTS" means all Capital Stock and all warrants or options
with respect to, or other rights to purchase, Capital Stock, but excluding Debt
convertible into equity (including, without limitation, the Convertible Notes).
11
"EVENT OF DEFAULT" has the meaning assigned to such term in Section
6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"EXCHANGE NOTES" means the Notes of the Company issued pursuant to the
Indenture in exchange for, and in an aggregate principal amount equal to, the
Initial Notes or any Initial Additional Notes validly tendered and not withdrawn
in an Exchange Offer in compliance with the terms of the Registration Rights
Agreement and containing terms substantially identical to the Initial Notes or
any Initial Additional Notes (except that (i) the issuance of such Exchange
Notes will be registered under the Securities Act and will not be subject to
transfer restrictions or bear the Restricted Legend and (ii) the provisions
relating to Additional Interest will be eliminated).
"EXCHANGE OFFER" means an offer by the Company to the Holders of the
Initial Notes or any Initial Additional Notes to exchange outstanding Notes for
Exchange Notes, as provided for in the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"FILED" means the filing of any information with the Commission,
whether such information is considered filed or furnished by the applicable
Commission rules.
"FIXED CHARGE COVERAGE RATIO" means, on any date (the "TRANSACTION
DATE"), the ratio of
(x) the aggregate amount of EBITDA for the four fiscal
quarters immediately prior to the transaction date for which financial
statements have been provided (or if not timely provided, required to
be provided) pursuant to Section 4.17 (whether through filing of a Form
10-Q or a Form 10-K for such period or an earnings release filed on
Form 8-K) or, in the case of periods prior to the Issue Date, filed
with the Commission (the "REFERENCE PERIOD") to
(y) the aggregate Fixed Charges during such reference
period.
In making the foregoing calculation,
(1) pro forma effect will be given to any Debt or
Disqualified or Preferred Stock Incurred during or after the reference
period to the extent the Debt or Disqualified or Preferred Stock is
outstanding or is to be Incurred on the transaction date as if the Debt
or Disqualified or Preferred Stock had been Incurred on the first day
of the reference period;
12
(2) pro forma calculations of interest on Debt bearing a
floating interest rate will be made as if the rate in effect on the
transaction date (taking into account any Hedging Agreement protecting
against fluctuations in interest rates applicable to the Debt, if the
Hedging Agreement protecting against fluctuations in interest rates has
a remaining term of at least 12 months or, if less, a remaining term
equal to the remaining term of such Debt) had been the applicable rate
for the entire reference period;
(3) Fixed Charges related to any Debt or Disqualified or
Preferred Stock no longer outstanding or to be repaid or redeemed on
the transaction date, except for Interest Expense accrued during the
reference period under a revolving credit to the extent of the
commitment thereunder (or under any successor revolving credit) in
effect on the transaction date, will be excluded;
(4) pro forma effect will be given to
(A) the creation, designation or redesignation
of Restricted and Unrestricted Subsidiaries,
(B) the acquisition or disposition of companies,
divisions or lines of businesses by the Company and its
Restricted Subsidiaries, including any acquisition or
disposition of a company, division or line of business since
the beginning of the reference period by a Person that became
a Restricted Subsidiary after the beginning of the reference
period, and
(C) the discontinuation of any discontinued
operations that have occurred since the beginning of the
reference period
as if such events had occurred, and, in the case of any
disposition, the proceeds thereof applied, on the first day of the
reference period; and
(5) when the Nordural expansion, as described in the
Offering Circular under "Business -- The Nordural Acquisition and
Expansion" is complete and the expanded facility is operational for a
complete fiscal quarter but less than the four fiscal quarters included
in the reference period, pro forma effect shall be given to the results
of Nordural directly attributable to the expansion as if such expansion
had been completed at the beginning of the reference period; to make
such pro forma calculation, the Company shall take the results of
operations directly attributable to the expansion facility for the
fiscal quarter or quarters when the expanded facility is operational
and annualize them on a simple arithmetic basis, and shall exclude
actual results directly attributable to the expansion facility
13
for the fiscal quarter or quarters prior to full operations. Prior to
consummation of any transaction that is being consummated in reliance
upon such pro forma calculation, the Company shall deliver an Officer's
Certificate executed by the Company's principal financial or accounting
officer to the Trustee certifying that such calculations were made in
accordance with the Indenture.
To the extent that pro forma effect is to be given to an acquisition or
disposition of a company, division or line of business, the pro forma
calculation will be based upon the most recent four full fiscal
quarters for which the relevant financial information is available.
"FIXED CHARGES" means, for any period, the sum of
(1) Interest Expense for such period; and
(2) the product of
(x) cash and non-cash dividends paid, declared,
accrued or accumulated on any Disqualified Stock of the
Company or Disqualified Stock or Preferred Stock of a
Restricted Subsidiary, except for dividends payable solely, or
solely at the Company's option, in the Company's Qualified
Stock or paid to the Company or to a Wholly Owned Restricted
Subsidiary; and
(y) a fraction, the numerator of which is one
and the denominator of which is one minus the sum of the
currently effective combined Federal, state, local and foreign
tax rate applicable to the Company and its Restricted
Subsidiaries;
provided that, with respect to any Restricted Subsidiary, its Fixed Charges will
be included for purposes of calculating the Fixed Charge Coverage Ratio only to
the extent and in the same proportion that the relevant Restricted Subsidiary's
Fixed Charges were included in calculating EBITDA.
"FOREIGN-OWNED PARENT HOLDING COMPANY" means any Parent Holding
Company, all of the Equity Interests of which are owned by one or more Foreign
Restricted Subsidiaries.
"FOREIGN PERSON" means any Person that is formed under the laws of, and
50% or more of its assets are located in, any jurisdictions outside the United
States of America.
"FOREIGN RESTRICTED SUBSIDIARY" means any Restricted Subsidiary that is
not a Domestic Restricted Subsidiary.
14
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date.
"GLENCORE" means Glencore International AG, a corporation organized
under the laws of Switzerland.
"GLOBAL NOTE" means a Note in registered global form without interest
coupons.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services (unless such purchase arrangements are on an
arm's-length basis and are entered into in the ordinary course of business), to
take-or-pay, or to maintain financial statement conditions or otherwise) or (ii)
entered into for purposes of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof, in whole or in part; provided that the term
"Guarantee" does not include endorsements for collection or deposit in the
ordinary course of business or indemnities given in connection with any
disposition of assets. The term "Guarantee" used as a verb has a corresponding
meaning. Notwithstanding the foregoing, contracts for the purchase of alumina or
bauxite with any Person owning the Gramercy alumina facility or the Jamaican
bauxite operations, as the case may be, that provide for pricing in a manner
similar to that described in the Offering Circular under "The Planned Gramercy
Acquisition", and any amendments, modifications or replacements from time to
time, including any subsequent replacements, that are not materially less
favorable to the Company and its Restricted Subsidiaries than the agreements so
described shall not be deemed to be Guarantees by the Company and its Restricted
Subsidiaries of any obligations of such Person or an Investment in such Person.
"GUARANTOR" means (i) each Domestic Restricted Subsidiary of the
Company in existence on the Issue Date other than (a) Century Aluminum of
Kentucky LLC (until the repayment date) or (b) any Foreign-Owned Parent Holding
Company and (ii) each Restricted Subsidiary that executes a supplemental
indenture in the form of Exhibit B to the Indenture providing for the guarantee
of the payment of the Notes, or any successor obligor under its Note Guaranty
pursuant to Section 5.02, in each case unless and until such Guarantor is
released from its Note Guaranty pursuant to the Indenture.
15
"HAWESVILLE FACILITY" means the Company's aluminum reduction facility
located in Hawesville, Kentucky.
"HEDGING AGREEMENT" means (i) any interest rate swap agreement,
interest rate cap agreement or other agreement designed to protect against
fluctuations in interest rates or (ii) any foreign exchange forward contract,
currency swap agreement or other agreement designed to protect against
fluctuations in foreign exchange rates or (iii) any commodity or raw material
futures contract or any other agreement designed to protect against fluctuations
in commodity or raw material prices, including any commodity forward sales
contract at a fixed price.
"HOLDER" or "NOTEHOLDER" means the registered holder of any Note.
"INCUR" means, with respect to any Debt or Capital Stock, to incur,
create, issue, assume or Guarantee such Debt or Capital Stock. If any Person
becomes a Restricted Subsidiary on any date after the Issue Date (including by
redesignation of an Unrestricted Subsidiary or failure of an Unrestricted
Subsidiary to meet the qualifications necessary to remain an Unrestricted
Subsidiary), the Debt and Capital Stock of such Person outstanding on such date
will be deemed to have been Incurred by such Person on such date for purposes of
Section 4.06, but will not be considered the sale or issuance of Equity
Interests for purposes of Section 4.10 or Section 4.13. The accretion of
original issue discount or payment of interest in kind will not be considered an
Incurrence of Debt.
"INDENTURE" means this indenture, as amended or supplemented from time
to time.
"INITIAL ADDITIONAL NOTES" means Additional Notes issued in an offering
not registered under the Securities Act and any Notes issued in replacement
thereof, but not including any Exchange Notes issued in exchange therefor.
"INITIAL NOTES" means the Notes issued on the Issue Date and any Notes
issued in replacement thereof, but not including any Exchange Notes issued in
exchange therefor.
"INITIAL PURCHASERS" means the initial purchasers party to a purchase
agreement with the Company relating to the sale of the Initial Notes or Initial
Additional Notes by the Company.
"INSTITUTIONAL ACCREDITED INVESTOR CERTIFICATE" means a certificate
substantially in the form of Exhibit G hereto.
"INTEREST", in respect of the Notes, unless the context otherwise
requires, refers to interest and Additional Interest, if any.
16
"INTEREST EXPENSE" means, for any period, the consolidated interest
expense of the Company and its Restricted Subsidiaries determined in accordance
with GAAP, plus, to the extent not included in such consolidated interest
expense, and to the extent incurred, accrued or payable by the Company or its
Restricted Subsidiaries, without duplication, (i) interest expense attributable
to Sale and Leaseback Transactions, (ii) amortization of debt discount and debt
issuance costs, (other than debt issuance costs incurred in connection with the
offering of the Notes and the Convertible Notes offering and any other debt
issuance costs incurred on or prior to the Issue Date or in respect of the
Nordural refinancing described in the Offering Circular, which costs shall be
excluded from Interest Expense), provided that expenses relating to the early
retirement of Debt shall not be deemed Debt issuance costs, (iii) capitalized
interest, (iv) non-cash interest expense, (v) commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing, (vi) net payments made, or less any net payments received, pursuant
to Hedging Agreements (other than Hedging Agreements relating to commodities or
raw materials), and amortization of fees in respect thereof; provided that (a)
such Hedging Agreement was entered into for the purpose of hedging interest rate
or currency rate risk with respect to Debt of the Company (the "underlying
Debt") and (b) payments made or received in respect of ▇▇▇▇▇▇ of the principal
amount of the underlying Debt shall be excluded, and (vii) any of the above
expenses with respect to Debt of another Person Guaranteed by the Company or any
of its Restricted Subsidiaries (other than Non-Recourse Debt of a Joint Venture
or Unrestricted Subsidiary Guaranteed solely pursuant to a Limited Recourse
Guarantee).
"INTEREST PAYMENT DATE" means each February 15 and August 15 of each
year, commencing February 15, 2005.
"INVESTMENT" means, for any Person,
(1) any direct or indirect advance, loan or other
extension of credit to another Person,
(2) any capital contribution to another Person, by means
of any transfer of cash or other property or in any other form,
(3) any purchase or acquisition of Equity Interests,
bonds, notes or other Debt, or other instruments or securities issued
by another Person, including the receipt of any of the above as
consideration for the disposition of assets or rendering of services,
or
(4) any Guarantee of any obligation of another Person.
If the Company or any Restricted Subsidiary (x) sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
so
17
that, after giving effect to that sale or disposition, such Person is no longer
a Subsidiary of the Company, or (y) designates any Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with Section 4.16, all remaining
Investments of the Company and the Restricted Subsidiaries in such Person shall
be deemed to have been made at such time.
"INVESTMENT GRADE" means a rating of BBB- or higher by S&P and Baa3 or
higher by Moody's. If S&P or Moody's shall cease to act as a securities rating
agency, the Company shall select any other nationally recognized securities
rating agency in their stead and the equivalent of such ratings by such rating
agency shall be used.
"ISSUE DATE" means the date on which the Original Notes are originally
issued under the Indenture.
"JOINT VENTURE" means any joint venture or partnership between the
Company or any Restricted Subsidiary and any other Person (other than an
Unrestricted Subsidiary), whether or not such joint venture or partnership is a
Subsidiary of the Company or any Restricted Subsidiary.
"JOINT VENTURE HOLDING COMPANY" means any Subsidiary of the Company the
activities of which are limited, directly or indirectly, to making and owning
Equity Interests and other Investments in a Joint Venture or Unrestricted
Subsidiary and activities incidental thereto, including participation in
financing arrangements of such Joint Venture or Unrestricted Subsidiary (but in
each case only for so long as its activities are so limited).
"JUDGMENT DEFAULT" has the meaning assigned to such term in
Section 6.01.
"LIEN" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or Sale and Leaseback Transaction).
"LIMITED RECOURSE GUARANTY" means, with respect to any Non-Recourse
Debt of a Joint Venture or Unrestricted Subsidiary, any Guarantee of such Debt
by any related Joint Venture Holding Company, including a pledge by any such
Joint Venture Holding Company of the Capital Stock and other Investments held in
such Joint Venture or Unrestricted Subsidiary, provided that in any event such
Guarantee and pledge are non-recourse in all respects to the Company and its
Restricted Subsidiaries other than such Joint Venture Holding Company.
"LIMITED RECOURSE PARENT GUARANTY" means, with respect to any Debt of a
Foreign Restricted Subsidiary, any Guarantee of such Debt by any related Parent
Holding Company, including a pledge by any such related Parent Holding
18
Company of the Capital Stock and other Investments held in such Foreign
Restricted Subsidiary or any other Parent Holding Company in respect of such
Foreign Restricted Subsidiary.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the proceeds
of such Asset Sale in the form of cash (including (i) payments in respect of
deferred payment obligations to the extent corresponding to principal, but not
interest, when received in the form of cash, and (ii) proceeds from the
conversion of other consideration received when converted to cash), net of
(1) brokerage commissions and other fees and expenses
related to such Asset Sale, including fees and expenses of counsel,
accountants and investment bankers;
(2) provisions for taxes as a result of such Asset Sale
taking into account the consolidated results of operations of the
Company and its Restricted Subsidiaries;
(3) payments required to be made to holders of minority
interests in Restricted Subsidiaries as a result of such Asset Sale or
to repay Debt outstanding at the time of such Asset Sale that is
secured by a Lien on the property or assets sold; and
(4) appropriate amounts to be provided in conformity with
GAAP as a reserve against liabilities associated with such Asset Sale,
including pension and other post-employment benefit liabilities,
liabilities related to environmental matters and indemnification
obligations associated with such Asset Sale, with any subsequent
reduction of the reserve other than by payments made and charged
against the reserved amount to be deemed a receipt of cash.
"NON-RECOURSE DEBT" means Debt as to which (i) neither the Company nor
any Restricted Subsidiary (other than a Joint Venture Holding Company) provides
any Guarantee and as to which the lenders have agreed or have been notified in
writing that they will not have any recourse to the stock or assets of the
Company or any Restricted Subsidiary (other than a Limited Recourse Guaranty by
a Joint Venture Holding Company) and (ii) no default thereunder would, as such,
constitute a default under any Debt of the Company or any Restricted Subsidiary
(other than Debt of a Joint Venture Holding Company).
"NON-U.S. PERSON" means a Person that is not a U.S. person, as defined
in Regulation S.
19
"NORDURAL" means Nordural hf and its successors.
"NORDURAL HOLDING COMPANY" means any Restricted Subsidiary of the
Company that has no assets and conducts no operations other than the direct or
indirect holding of Equity Interests and other Investments in Nordural and
activities incidental thereto, including participation in financing arrangements
of Nordural (but in each case only for so long as its activities are so
limited), and the receipt, reinvestment or distribution of dividends, interest
and other distributions.
"NOTES" has the meaning assigned to such term in the Recitals.
"NOTE GUARANTY" means the guaranty of the Notes by a Guarantor pursuant
to the Indenture.
"OBLIGATIONS" means, with respect to any Debt, all obligations (whether
in existence on the Issue Date or arising afterwards, absolute or contingent,
direct or indirect) for or in respect of principal (when due, upon acceleration,
upon redemption, upon mandatory repayment or repurchase pursuant to a mandatory
offer to purchase, or otherwise), premium, interest, penalties, fees,
indemnification, reimbursement and other amounts payable and liabilities with
respect to such Debt, including all interest accrued or accruing after the
commencement of any bankruptcy, insolvency or reorganization or similar case or
proceeding at the contract rate (including, without limitation, any contract
rate applicable upon default) specified in the relevant documentation, whether
or not the claim for such interest is allowed as a claim in such case or
proceeding.
"OFFER TO PURCHASE" has the meaning assigned to such term in
Section 3.04.
"OFFERING CIRCULAR" means the confidential offering circular dated
August 10, 2004 with respect to the Initial Notes.
"OFFICER" means the chairman of the Board of Directors, the president
or chief executive officer, any vice president, the chief financial officer, the
treasurer or any assistant treasurer, or the secretary or any assistant
secretary, of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company (i) by the chairman of the Board of Directors, the president or chief
executive officer or a vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer or the secretary or any assistant
secretary; provided that one of the Officers signing an Officers' Certificate
pursuant to Section 4.18 shall be the principal executive, financial or
accounting officer of the Company.
20
"OFFSHORE GLOBAL NOTE" means a Global Note representing Notes issued
and sold pursuant to Regulation S.
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the
Trustee.
"ORIGINAL NOTES" means the Initial Notes and any Exchange Notes issued
in exchange therefor.
"PARENT HOLDING COMPANY" means any Restricted Subsidiary of the Company
(including any Nordural Holding Company) that has no assets and conducts no
operations other than the direct or indirect holding of Equity Interests or
other Investments in a Foreign Restricted Subsidiary of the Company and
activities incidental thereto, including participation in financing arrangements
of such Subsidiary (but only for so long as its activities are so limited), and
the receipt, reinvestment or distribution of dividends, interest and other
distributions.
"PAYING AGENT" refers to a Person appointed by the Company pursuant to
Section 2.03 to perform the obligations in respect of payments made or funds
held in respect of the Notes.
"PERMITTED BUSINESS" means the business of reducing, refining,
processing and selling alumina, primary aluminum and aluminum products, and any
business reasonably related, incidental or ancillary thereto.
"PERMITTED DEBT" has the meaning assigned to such term in Section 4.06.
"PERMITTED HOLDERS" means any or all of the following:
(1) Glencore; and
(2) any Person both the Capital Stock and the Voting
Stock of which (or in the case of a trust, the beneficial interests in
which) is owned 80% by the Person specified in clause (1).
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company or in a Restricted
Subsidiary that is engaged in a Permitted Business;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Subsidiary of
the Company in a Person, if as a result of such Investment,
21
(A) such Person becomes a Restricted Subsidiary
engaged in a Permitted Business, or
(B) such Person is merged or consolidated with
or into, or transfers or conveys substantially all its assets
to, or is liquidated into, the Company or a Restricted
Subsidiary engaged in a Permitted Business;
(4) Investments received as non-cash consideration in an
Asset Sale made pursuant to and in compliance with Section 4.13;
(5) any Investment made in exchange for, or out of the
net cash proceeds of, a substantially concurrent offering of Qualified
Equity Interests of the Company; provided that any proceeds of the
issuance of such Qualified Equity Interests shall not be included in
making the calculations under clause (3) of paragraph (a) of Section
4.07;
(6) Hedging Agreements otherwise permitted under the
Indenture;
(7) (i) receivables owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of
business, (ii) endorsements for collection or deposit in the ordinary
course of business, and (iii) securities, instruments or other
obligations received in compromise or settlement of debts created in
the ordinary course of business, or by reason of a composition or
readjustment of debts or reorganization of another Person, or in
satisfaction of claims or judgments;
(8) payroll, travel and other loans or advances to, or
Guarantees issued to support the obligations of, officers, directors
and employees (including loans or Guarantees to satisfy tax withholding
obligations of such persons upon the exercise of options or the vesting
of performance shares), in each case in the ordinary course of
business, not in excess of $2.0 million outstanding at any time;
(9) extensions of credit to customers and suppliers in
the ordinary course of business; and
(10) Investments in any Joint Venture directly or
indirectly owning the Gramercy alumina facility, a 49% interest in a
Jamaican partnership that owns bauxite mining operations and related
assets (a) in an amount not to exceed $11.5 million, plus any closing
or post-closing purchase price adjustments, which Investments are used
to finance the acquisition of such facility, partnership interests and
related assets by such Joint Venture, (b) in amounts necessary to fund
obligations of such Joint
22
Venture with respect to environmental costs, workers' compensation,
pensions and benefit plans or self-insurance liabilities and other
related expenses in an amount not to exceed $15.0 million and (c) made
or deemed to be made as a result of the Company and its Restricted
Subsidiaries' funding or obligation to fund one-half of such Joint
Venture's capital expenditures.
"PERMITTED LIENS" means:
(1) Liens existing on the Issue Date not otherwise
constituting Permitted Liens;
(2) Liens securing the Company's 11.75% Senior Secured
First Mortgage Notes due 2008, the guarantees relating thereto, and
other Obligations in respect thereof;
(3) Liens securing Debt under or with respect to the
Credit Agreement incurred pursuant to clause (i) of Section 4.06(b) and
Obligations in respect thereof; provided that such Liens only extend to
any current assets;
(4) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts or leases, or to
secure public or statutory obligations (including, without limitation,
obligations pursuant to Environmental Laws), surety bonds, customs
duties and the like, or for the payment of rent, in each case incurred
in the ordinary course of business and not securing Debt;
(5) Liens imposed by law, such as carriers', vendors',
warehousemen's and mechanics' liens, in each case for sums not yet due
or being contested in good faith and by appropriate proceedings;
(6) Liens in respect of taxes and other governmental
assessments and charges which are not yet due or which are being
contested in good faith and by appropriate proceedings;
(7) Liens securing reimbursement obligations with respect
to letters of credit that solely encumber documents and other property
relating to such letters of credit and the proceeds thereof;
(8) minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, licenses, rights
of way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real
property, not interfering in
23
any material respect with the conduct of the business of the Company
and its Restricted Subsidiaries;
(9) licenses or leases or subleases as licensor, lessor
or sublessor of any of its property, including intellectual property,
in the ordinary course of business;
(10) customary Liens in favor of trustees and escrow
agents, and netting and setoff rights, banker's liens and the like in
favor of financial institutions and counterparties to financial
obligations and instruments, including netting and setoff rights with
respect to (but not collateral pledged to secure) obligations under
Hedging Agreements;
(11) Liens on assets pursuant to merger agreements, stock
or asset purchase agreements and similar agreements in respect of the
disposition of such assets;
(12) options, put and call arrangements, rights of first
refusal and similar rights and customary reciprocal easements and other
rights of use relating to Investments in joint ventures, partnerships
and the like, or relating to ownership of undivided interests in assets
subject to a joint ownership or similar agreement;
(13) judgment liens, and Liens securing appeal bonds or
letters of credit issued in support of or in lieu of appeal bonds, so
long as (x) no judgment default has occurred and is continuing and (y)
the aggregate amount of all obligations secured by such judgment liens
and other Liens described in this clause does not at any time exceed
$10.0 million;
(14) Liens on property of a Person at the time such Person
becomes a Restricted Subsidiary, provided such Liens were not created
in contemplation thereof and do not extend to any other property of the
Company or any Restricted Subsidiary;
(15) Liens on property at the time the Company or any of
the Restricted Subsidiaries acquires such property, including by means
of a merger or consolidation with or into the Company or a Restricted
Subsidiary, provided such Liens were not created in contemplation
thereof and do not extend to any other property of the Company or any
Restricted Subsidiary;
(16) Liens incurred or assumed in connection with the
issuance of revenue bonds the interest on which is tax-exempt under the
Internal Revenue Code;
24
(17) Liens securing or comprising a Limited Recourse
Guaranty;
(18) extensions, renewals or replacements of any Liens
referred to in clauses (1), (14), (15) or (16) in connection with the
refinancing of the obligations secured thereby, provided that such Lien
does not extend to any other property and, except as contemplated by
the definition of "Permitted Refinancing Debt", the amount secured by
such Lien is not increased;
(19) Liens on assets of Foreign Restricted Subsidiaries
and the related Parent Holding Companies securing Debt of Foreign
Restricted Subsidiaries and the related Limited Recourse Parent
Guaranty permitted to be Incurred under the Indenture (and Obligations
in respect thereof), including any Liens constituting encumbrances or
restrictions on the ability of the Company or any of its Restricted
Subsidiaries to dispose of the Equity Interests of any such Foreign
Restricted Subsidiary; and
(20) other Liens securing Obligations in an aggregate
amount not to exceed $150.0 million at any time outstanding.
"PERMITTED REFINANCING DEBT" has the meaning assigned to such term in
Section 4.06(b).
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity, including a
government or political subdivision or an agency or instrumentality thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all
Capital Stock which is preferred as to the payment of dividends or
distributions, upon liquidation or otherwise, over another class of Capital
Stock of such Person.
"PRINCIPAL" of any Debt means the principal amount of such Debt, (or if
such Debt was issued with original issue discount, the face amount of such Debt
less the remaining unamortized portion of the original issue discount of such
Debt), together with, unless the context otherwise indicates, any premium then
payable on such Debt.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering,
after the Issue Date, of Qualified Stock of the Company pursuant to an effective
registration statement under the Securities Act other than an issuance
registered on Form S-4 or S-8 or any successor thereto or any issuance pursuant
to employee benefit plans or otherwise in compensation to officers, directors or
employees.
25
"QUALIFIED EQUITY INTERESTS" means all Equity Interests of a Person
other than Disqualified Equity Interests.
"QUALIFIED STOCK" means all Capital Stock of a Person other than
Disqualified Stock.
"REFINANCE" has the meaning assigned to such term in Section 4.06.
"REGISTER" has the meaning assigned to such term in Section 2.09.
"REGISTRAR" means a Person engaged to maintain the Register.
"REGISTRATION RIGHTS AGREEMENT" means (i) the Registration Rights
Agreement dated on or about the Issue Date among the Company, the Guarantors
party thereto and the Initial Purchasers party thereto with respect to the
Initial Notes, and (ii) with respect to any Additional Notes, any registration
rights agreements between the Company and the Initial Purchasers party thereto
relating to rights given by the Company to the purchasers of Additional Notes to
register such Additional Notes or exchange them for Notes registered under the
Securities Act
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date means the February 1 or August 1 (whether or not a Business Day) next
preceding such Interest Payment Date.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S CERTIFICATE" means a certificate substantially in the
form of Exhibit E hereto.
"RELATED PARTY TRANSACTION" has the meaning assigned to such term in
Section 4.14.
"REPAYMENT DATE" means such time as Glencore is no longer providing any
letters of credit to support the Hawesville Facility industrial revenue bonds
outstanding on the Issue Date.
"RESPONSIBLE OFFICER" means with respect to the Trustee, any officer
assigned to the Corporate Trust Office with direct responsibility for the
administration of this Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"RESTRICTED LEGEND" means the legend set forth in Exhibit C.
26
"RESTRICTED PAYMENT" has the meaning assigned to such term in Section
4.07.
"RESTRICTED PERIOD" means the 40-day distribution compliance period as
defined in Regulation S, which period shall end on October 5, 2004.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A CERTIFICATE" means (i) a certificate substantially in the
form of Exhibit F hereto or (ii) a written certification addressed to the
Company and the Trustee to the effect that the Person making such certification
(x) is acquiring such Note (or beneficial interest) for its own account or one
or more accounts with respect to which it exercises sole investment discretion
and that it and each such account is a qualified institutional buyer within the
meaning of Rule 144A, (y) is aware that the transfer to it or exchange, as
applicable, is being made in reliance upon the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A, and (z) acknowledges that
it has received such information regarding the Company as it has requested
pursuant to Rule 144A(d)(4) or has determined not to request such information.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc., and its successors.
"SALE AND LEASEBACK TRANSACTION" means, with respect to any Person, an
arrangement whereby such Person enters into a lease of property previously
transferred by such Person to the lessor.
"SECURITIES ACT" means the Securities Act of 1933.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement
as defined in a Registration Rights Agreement.
"SIGNIFICANT RESTRICTED SUBSIDIARY" means any Restricted Subsidiary, or
group of Restricted Subsidiaries, that would, taken together, be a "significant
subsidiary" as defined in Article 1, Rule 1-02 (w)(1) or (2) of Regulation S-X
promulgated under the Securities Act, as that regulation is in effect on the
Issue Date.
"STATED MATURITY" means (i) with respect to any Debt, the date
specified as the fixed date on which the final installment of principal of such
Debt is due and payable or (ii) with respect to any scheduled installment of
principal of or interest on any Debt, the date specified as the fixed date on
which such installment is due and payable as set forth in the documentation
governing such
27
Debt, not including any contingent obligation to repay, redeem or repurchase
prior to the regularly scheduled date for payment.
"SUBORDINATED DEBT" means any Debt of the Company or any Guarantor
which is subordinated in right of payment to the Notes or the Note Guaranty, as
applicable, pursuant to a written agreement to that effect.
"SUBSIDIARY" means with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by, or, in the case of a
partnership, the sole general partner or the managing partner or the only
general partners of which are, such Person and one or more Subsidiaries of such
Person (or a combination thereof). Unless otherwise specified, "SUBSIDIARY"
means a Subsidiary of the Company.
"TOTAL ASSETS" means the total combined assets of the Company's Foreign
Restricted Subsidiaries, as shown on the most recent balance sheet of the
Company provided to the Trustee pursuant to the Indenture.
"TRUSTEE" means the party named as such in the first paragraph of the
Indenture or any successor trustee under the Indenture pursuant to Article 7.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939.
"U.S. GLOBAL NOTE" means a Global Note that bears the Restricted Legend
representing Notes issued and sold pursuant to Rule 144A.
"U.S. GOVERNMENT OBLIGATIONS" means obligations issued or directly and
fully guaranteed or insured by the United States of America or by any agent or
instrumentality thereof; provided that the full faith and credit of the United
States of America is pledged in support thereof.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company that at
the time of determination has previously been designated, and continues to be,
an Unrestricted Subsidiary in accordance with Section 4.16.
"VOTING STOCK" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"WHOLLY OWNED" means, with respect to any Restricted Subsidiary, a
Restricted Subsidiary all of the outstanding Capital Stock of which (other than
any director's qualifying shares) is owned by the Company and one or more Wholly
Owned Restricted Subsidiaries (or a combination thereof).
28
Section 1.02. Rules of Construction. Unless the context otherwise
requires or except as otherwise expressly provided,
(1) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(2) "herein," "hereof" and other words of similar import
refer to the Indenture as a whole and not to any particular Section,
Article or other subdivision;
(3) all references to Sections or Articles or Exhibits
refer to Sections or Articles or Exhibits of or to the Indenture unless
otherwise indicated; and
(4) references to agreements or instruments, or to
statutes or regulations, are to such agreements or instruments, or
statutes or regulations, as amended from time to time (or to successor
statutes and regulations).
ARTICLE 2
THE NOTES
Section 2.01. Form, Dating and Denominations 144A, Reg. S; Legends. (a)
The Notes and the Trustee's certificate of authentication will be substantially
in the form attached as Exhibit A. The terms and provisions contained in the
form of the Notes annexed as Exhibit A constitute, and are hereby expressly
made, a part of the Indenture. The Notes may have notations, legends or
endorsements required by law, rules of or agreements with national securities
exchanges to which the Company is subject, or usage. Each Note will be dated the
date of its authentication. The Notes will be issuable in denominations of
$1,000 in principal amount and any multiple of $1,000 in excess thereof.
(a) (i) Except as otherwise provided in paragraph (c), Section
2.10(b)(3), (b)(5), or (c) or Section 2.09(b)(iv), each Initial Note or Initial
Additional Note will bear the Restricted Legend.
(ii) Each Global Note, whether or not an Initial Note or
Initial Additional Notes will bear the DTC Legend.
(iii) Initial Notes and Initial Additional Notes offered
and sold in reliance on any exception under the Securities Act other
than Regulation S and Rule 144A will be issued, and upon the request of
the Company to the Trustee, Initial Notes offered and sold in reliance
on Rule 144A may be issued, in the form of Certificated Notes.
29
(iv) Exchange Notes will be issued, subject to Section
2.09(b), in the form of one or more Global Notes.
(b) (i) If the Company determines (upon the advice of counsel and
such other certifications and evidence as the Company may reasonably require)
that a Note is eligible for resale pursuant to Rule 144(k) under the Securities
Act (or a successor provision) and that the Restricted Legend is no longer
necessary or appropriate in order to ensure that subsequent transfers of the
Note (or a beneficial interest therein) are effected in compliance with the
Securities Act, or (ii) after an Initial Note or any Initial Additional Note is
(x) sold pursuant to an effective registration statement under the Securities
Act, pursuant to the Registration Rights Agreement or otherwise, or (y) is
validly tendered for exchange into an Exchange Note pursuant to an Exchange
Offer, the Company may instruct the Trustee to cancel the Note and issue to the
Holder thereof (or to its transferee) a new Note of like tenor and amount,
registered in the name of the Holder thereof (or its transferee), that does not
bear the Restricted Legend, and the Trustee will comply with such instruction.
In addition, the Restricted Legend shall be removed from any Initial
Note or Initial Additional Note that is an Offshore Global Note upon termination
of the Restricted Period.
(c) By its acceptance of any Note bearing the Restricted Legend
(or any beneficial interest in such a Note), each Holder thereof and each owner
of a beneficial interest therein acknowledges the restrictions on transfer of
such Note (and any such beneficial interest) set forth in this Indenture and in
the Restricted Legend and agrees that it will transfer such Note (and any such
beneficial interest) only in accordance with the Indenture and such legend.
Section 2.02 . Execution and Authentication; Exchange Notes; Additional
Notes.
(a) An Officer shall execute the Notes for the Company by
facsimile or manual signature in the name and on behalf of the Company. If an
Officer whose signature is on a Note no longer holds that office at the time the
Note is authenticated, the Note will still be valid.
(b) A Note will not be valid until the Trustee manually signs the
certificate of authentication on the Note, with the signature conclusive
evidence that the Note has been authenticated under the Indenture.
(c) At any time and from time to time upon or after the execution
and delivery of the Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication. The Trustee will authenticate and
deliver
30
(i) Initial Notes for original issue in the aggregate
principal amount not to exceed $250,000,000, and
(ii) Initial Additional Notes from time to time for
original issue in aggregate principal amounts specified by the Company,
and
(iii) Exchange Notes from time to time for issue in
exchange for a like principal amount of Initial Notes or Initial
Additional Notes after the following conditions have been met:
(1) Receipt by the Trustee of an Officers' Certificate
specifying
(A) the amount of Notes to be authenticated and
the date on which the Notes are to be authenticated,
(B) whether the Notes are to be Initial Notes,
Additional Notes or Exchange Notes,
(C) in the case of Additional Notes, that the
issuance of such Notes does not contravene any provision of
Article 4,
(D) whether the Notes are to be issued as one or
more Global Notes or Certificated Notes, and
(E) other information the Company may determine
to include or the Trustee may reasonably request.
(2) In the case of Initial Additional Notes, receipt by
the Trustee of an Opinion of Counsel confirming that (subject to
customary assumptions) the Holders of the outstanding Notes will be
subject to federal income tax in the same amounts, in the same manner
and at the same times as would have been the case if such Additional
Notes were not issued.
(3) In the case of Exchange Notes, effectiveness of an
Exchange Offer Registration Statement and consummation of the exchange
offer thereunder (and receipt by the Trustee of an Officers'
Certificate to that effect). Initial Notes or Initial Additional Notes
exchanged for Exchange Notes will be cancelled by the Trustee.
Section 2.03. Registrar, Paying Agent and Authenticating Agent; Paying
Agent to Hold Money in Trust. (a) The Company may appoint one or more Registrars
and one or more Paying Agents, and the Trustee may appoint an Authenticating
Agent, in which case each reference in the Indenture to the Trustee in respect
of the obligations of the Trustee to be performed by that Agent will be
31
deemed to be references to the Agent. The Company may act as Registrar or
(except for purposes of Article 8) Paying Agent. In each case the Company and
the Trustee will enter into an appropriate agreement with the Agent implementing
the provisions of the Indenture relating to the obligations of the Trustee to be
performed by the Agent and the related rights. The Company initially appoints
the Trustee as Registrar and Paying Agent.
(b) The Company will require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for the
payment of principal of and interest on the Notes and will promptly notify the
Trustee of any default by the Company in making any such payment. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require the Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent will have no
further liability for the money so paid over to the Trustee.
Section 2.04. Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if a Holder claims that its Note has been lost, destroyed or
wrongfully taken, the Company will issue and the Trustee will authenticate a
replacement Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding. Every replacement Note is an additional
obligation of the Company and entitled to the benefits of the Indenture. If
required by the Trustee or the Company, an indemnity must be furnished that is
sufficient in the judgment of both the Trustee and the Company to protect the
Company and the Trustee from any loss they may suffer if a Note is replaced. The
Company may charge the Holder for the expenses of the Company and the Trustee in
replacing a Note. In case the mutilated, lost, destroyed or wrongfully taken
Note has become or is about to become due and payable, the Company in its
discretion may pay the Note instead of issuing a replacement Note.
Section 2.05. Outstanding Notes. (a) Notes outstanding at any time are
all Notes that have been authenticated by the Trustee except for
(i) Notes cancelled by the Trustee or delivered to it for
cancellation;
(ii) any Note which has been replaced pursuant to Section
2.04 unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a protected
purchaser; and
(iii) on or after the maturity date or any redemption date
or date for purchase of the Notes pursuant to an Offer to Purchase,
those Notes
32
payable or to be redeemed or purchased on that date for which the
Trustee (or Paying Agent, other than the Company or an Affiliate of the
Company) holds money sufficient to pay all amounts then due.
(b) A Note does not cease to be outstanding because the Company or
one of its Affiliates holds the Note, provided that in determining whether the
Holders of the requisite principal amount of the outstanding Notes have given or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder, Notes owned by the Company or any Affiliate of the
Company will be disregarded and deemed not to be outstanding, (it being
understood that in determining whether the Trustee is protected in relying upon
any such request, demand, authorization, direction, notice, consent, waiver or
other action, only Notes which a Responsible Officer of the Trustee knows to be
so owned will be so disregarded). Notes so owned which have been pledged in good
faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any Affiliate of the Company.
Section 2.06. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee will authenticate temporary
Notes. Temporary Notes will be substantially in the form of definitive Notes but
may have insertions, substitutions, omissions and other variations determined to
be appropriate by the Officer executing the temporary Notes, as evidenced by the
execution of the temporary Notes. If temporary Notes are issued, the Company
will cause definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes will be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for the purpose pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any temporary Notes the
Company will execute and the Trustee will authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes will be entitled to the
same benefits under the Indenture as definitive Notes.
Section 2.07. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold. Any Registrar or the Paying
Agent will forward to the Trustee any Notes surrendered to it for transfer,
exchange or payment. The Trustee will cancel all Notes surrendered for transfer,
exchange, payment or cancellation and dispose of them in accordance with its
normal procedures or the written instructions of the Company. The Company may
not issue new Notes to replace Notes it has paid in full or delivered to the
Trustee for cancellation.
33
Section 2.08. CUSIP and CINS Numbers. The Company in issuing the Notes
may use "CUSIP" and "CINS" numbers, and the Trustee will use CUSIP numbers or
CINS numbers in notices of redemption or exchange or in Offers to Purchase as a
convenience to Holders, the notice to state that no representation is made as to
the correctness of such numbers either as printed on the Notes or as contained
in any notice of redemption or exchange or Offer to Purchase. The Company will
promptly notify the Trustee in writing of any change in the CUSIP or CINS
numbers.
Section 2.09. Registration, Transfer and Exchange. (a) The Notes will
be issued in registered form only, without coupons, and the Company shall cause
the Trustee to maintain a register (the "REGISTER") of the Notes, for
registering the record ownership of the Notes by the Holders and transfers and
exchanges of the Notes.
(a) (i) Each Global Note will be registered in the name of the
Depositary or its nominee and, so long as DTC is serving as the Depositary
thereof, will bear the DTC Legend.
(ii) Each Global Note will be delivered to the Trustee as
custodian for the Depositary. Transfers of a Global Note (but not a
beneficial interest therein) will be limited to transfers thereof in
whole, but not in part, to the Depositary, its successors or their
respective nominees, except (A) as set forth in Section 2.10(b)(iv) and
(B) transfers of portions thereof in the form of Certificated Notes may
be made upon request of an Agent Member (for itself or on behalf of a
beneficial owner) by written notice given to the Trustee by or on
behalf of the Depositary in accordance with customary procedures of the
Depositary and in compliance with this Section and Section 2.10.
(iii) Agent Members will have no rights under the Indenture
with respect to any Global Note held on their behalf by the Depositary,
and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of
such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, the Depositary or its nominee may grant proxies and
otherwise authorize any Person (including any Agent Member and any
Person that holds a beneficial interest in a Global Note through an
Agent Member) to take any action which a Holder is entitled to take
under the Indenture or the Notes, and nothing herein will impair, as
between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of
any security.
(iv) If (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for a Global Note and a
34
successor depositary is not appointed by the Company within 90 days of
the notice or (y) an Event of Default has occurred and is continuing
and the Trustee has received a request from the Depositary, the Trustee
will promptly exchange each beneficial interest in the Global Note for
one or more Certificated Notes in authorized denominations having an
equal aggregate principal amount registered in the name of the owner of
such beneficial interest, as identified to the Trustee by the
Depositary, and thereupon the Global Note will be deemed canceled. If
such Note was an Offshore Global Note, then the Certificated Notes
issued in exchange therefore will not bear a Restricted Legend.
(c) Each Certificated Note will be registered in the name of the
holder thereof or its nominee.
(d) A Holder may transfer a Note (or a beneficial interest
therein) to another Person or exchange a Note (or a beneficial interest therein)
for another Note or Notes of any authorized denomination by presenting to the
Trustee a written request therefor stating the name of the proposed transferee
or requesting such an exchange, accompanied by any certification, opinion or
other document required by Section 2.10. The Trustee will promptly register any
transfer or exchange that meets the requirements of this Section by noting the
same in the register maintained by the Trustee for the purpose; provided that
(i) no transfer or exchange will be effective until it is
registered in such register and
(ii) the Trustee will not be required (A) to issue,
register the transfer of or exchange any Note for a period of 15 days
before a selection of Notes to be redeemed or purchased pursuant to an
Offer to Purchase, (B) to register the transfer of or exchange any Note
so selected for redemption or purchase in whole or in part, except, in
the case of a partial redemption or purchase, that portion of any Note
not being redeemed or purchased, or (C) if a redemption or a purchase
pursuant to an Offer to Purchase is to occur after a Regular Record
Date but on or before the corresponding Interest Payment Date, to
register the transfer of or exchange any Note on or after the Regular
Record Date and before the date of redemption or purchase. Prior to the
registration of any transfer, the Company, the Trustee and their agents
will treat the Person in whose name the Note is registered as the owner
and Holder thereof for all purposes (whether or not the Note is
overdue), and will not be affected by notice to the contrary.
From time to time the Company will execute and the Trustee will
authenticate additional Notes as necessary in order to permit the registration
of a transfer or exchange in accordance with this Section.
35
No service charge will be imposed in connection with any registration
of transfer or exchange of any Note, but the Company or the Trustee may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than a transfer tax or other
similar governmental charge payable upon exchange pursuant to subsection
(b)(iv)).
(e) (i) Global Note to Global Note. If a beneficial interest in a
Global Note is transferred or exchanged for a beneficial interest in another
Global Note, the Trustee will (x) record a decrease in the principal amount of
the Global Note being transferred or exchanged equal to the principal amount of
such transfer or exchange and (y) record a like increase in the principal amount
of the other Global Note. Any beneficial interest in one Global Note that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note, or exchanged for an interest in another Global Note, will, upon
registration of transfer or exchange, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer and exchange restrictions, if any, and
other procedures applicable to beneficial interests in such other Global Note
for as long as it remains such an interest.
(ii) Global Note to Certificated Note. If a beneficial
interest in a Global Note is transferred or exchanged for a
Certificated Note, the Trustee will (x) record a decrease in the
principal amount of such Global Note equal to the principal amount of
such transfer or exchange and (y) deliver one or more new Certificated
Notes in authorized denominations having an equal aggregate principal
amount to the transferee (in the case of a transfer) or the owner of
such beneficial interest (in the case of an exchange), registered in
the name of such transferee or owner, as applicable.
(iii) Certificated Note to Global Note. If a Certificated
Note is transferred or exchanged for a beneficial interest in a Global
Note, the Trustee will (x) cancel such Certificated Note, (y) record an
increase in the principal amount of such Global Note equal to the
principal amount of such transfer or exchange and (z) in the event that
such transfer or exchange involves less than the entire principal
amount of the canceled Certificated Note, deliver to the Holder thereof
one or more new Certificated Notes in authorized denominations having
an aggregate principal amount equal to the untransferred or unexchanged
portion of the canceled Certificated Note, registered in the name of
the Holder thereof.
(iv) Certificated Note to Certificated Note. If a
Certificated Note is transferred or exchanged for another Certificated
Note, the Trustee will (x) cancel the Certificated Note being
transferred or exchanged, (y) deliver one or more new Certificated
Notes in authorized denominations
36
having an aggregate principal amount equal to the principal amount of
such transfer or exchange to the transferee (in the case of a transfer)
or the Holder of the canceled Certificated Note (in the case of an
exchange), registered in the name of such transferee or Holder, as
applicable, and (z) if such transfer or exchange involves less than the
entire principal amount of the canceled Certificated Note, deliver to
the Holder thereof one or more Certificated Notes in authorized
denominations having an aggregate principal amount equal to the
untransferred or unexchanged portion of the canceled Certificated Note,
registered in the name of the Holder thereof.
Section 2.10. Restrictions on Transfer and Exchange. (a) The transfer
or exchange of any Note (or a beneficial interest therein) may only be made in
accordance with this Section and Section 2.09 and, in the case of a Global Note
(or a beneficial interest therein), the applicable rules and procedures of the
Depositary. The Trustee shall refuse to register any requested transfer or
exchange that does not comply with the preceding sentence.
(b) Subject to paragraph (c), the transfer or exchange of any Note
(or a beneficial interest therein) of the type set forth in column A below for a
Note (or a beneficial interest therein) of the type set forth opposite in column
B below may only be made in compliance with the certification requirements (if
any) described in the clause of this paragraph set forth opposite in column C
below.
A B C
-------------------- -------------------- -------------
U.S. Global Note U.S. Global Note (1)
U.S. Global Note Offshore Global Note (2)
U.S. Global Note Certificated Note (3)
Offshore Global Note U.S. Global Note (4)
Offshore Global Note Offshore Global Note (1)
Offshore Global Note Certificated Note (5)
Certificated Note U.S. Global Note (4)
Certificated Note Offshore Global Note (2)
Certificated Note Certificated Note (3)
(1) No certification is required.
(2) The Person requesting the registration of transfer or
exchange must deliver or cause to be delivered to the Trustee a duly
completed Regulation S Certificate; provided that if the requested
transfer or exchange is made by the Holder of a Certificated Note that
does not bear the Restricted Legend, then no certification is required.
(3) The Person requesting the registration of transfer or
exchange must deliver or cause to be delivered to the Trustee (x) a
duly completed Rule 144A Certificate, (y) a duly completed Regulation S
37
Certificate or (z) a duly completed Institutional Accredited Investor
Certificate, and/or an Opinion of Counsel and such other certifications
and evidence as the Company may reasonably require in order to
determine that the proposed transfer or exchange is being made in
compliance with the Securities Act and any applicable securities laws
of any state of the United States; provided that if the requested
transfer or exchange is made by the Holder of a Certificated Note that
does not bear the Restricted Legend, then no certification is required.
In the event that (i) the requested transfer or exchange takes place
after the Restricted Period and a duly completed Regulation S
Certificate is delivered to the Trustee or (ii) a Certificated Note
that does not bear the Restricted Legend is surrendered for transfer or
exchange, upon registration of transfer or exchange the Trustee will
deliver a Certificated Note that does not bear the Restricted Legend.
(4) The Person requesting the registration of transfer or
exchange must deliver or cause to be delivered to the Trustee a duly
completed Rule 144A Certificate.
(5) If the requested transfer or exchange takes place
during the Restricted Period, the person requesting the registration of
transfer or exchange must deliver or cause to be delivered to the
Trustee (x) a duly completed Rule 144A Certificate or (y) a duly
completed Institutional Accredited Investor Certificate and/or an
Opinion of Counsel and such other certifications and evidence as the
Company may reasonably require in order to determine that the proposed
transfer or exchange is being made in compliance with the Securities
Act and any applicable securities laws of any State of the United
States. If the requested transfer or exchange takes place after the
Restricted Period, no certification is required and the Trustee will
deliver a Certificated Note that does not bear the Restricted Legend.
(c) No certification is required in connection with any transfer
or exchange of any Note (or a beneficial interest therein)
(i) after such Note is eligible for resale pursuant to
Rule 144(k) under the Securities Act (or a successor provision);
provided that the Company has provided the Trustee with an Officers'
Certificate to that effect, and the Company may require from any Person
requesting a transfer or exchange in reliance upon this clause (i) an
Opinion of Counsel and any other reasonable certifications and evidence
in order to support such certificate; or
(ii) (x) sold pursuant to an effective registration
statement, pursuant to the Registration Rights Agreement or otherwise
or (y) which is
38
validly tendered for exchange into an Exchange Note pursuant to an
Exchange Offer.
Any Certificated Note delivered in reliance upon this paragraph will
not bear the Restricted Legend.
(d) The Trustee will retain copies of all certificates, opinions
and other documents received in connection with the registration of a transfer
or exchange of a Note (or a beneficial interest therein), and the Company will
have the right to inspect and make copies thereof at any reasonable time upon
written notice to the Trustee.
ARTICLE 3
REDEMPTION, OFFER TO PURCHASE
Section 3.01. Optional Redemption. At any time and from time to time on
or after August 15, 2009, the Company may redeem the Notes, in whole or in part,
at a redemption price equal to the percentage of principal amount set forth
below plus accrued and unpaid interest to the redemption date.
12-month period commencing
August 15
in Year Percentage
----------------------------------------------- ----------
2009........................................... 103.75%
2010........................................... 102.50%
2011........................................... 101.25%
2012........................................... 100.00%
Section 3.02. Redemption with Proceeds of Public Equity Offering. At
any time and from time to time prior to August 15, 2007, the Company may redeem
Notes with the net cash proceeds received by the Company from any Public Equity
Offering at a redemption price equal to 107.50% of the principal amount plus
accrued and unpaid interest to the redemption date, in an aggregate principal
amount for all such redemptions not to exceed 35% of the aggregate principal
amount of the Notes originally issued under the Indenture, provided that
(a) in each case the redemption takes place not later than 60 days
after the closing of the related Public Equity Offering, and
(b) not less than 65% of the aggregate principal amount of the
Original Notes remains outstanding immediately thereafter.
Section 3.03. Method and Effect of Redemption. (a) If the Company
elects to redeem Notes, it must notify the Trustee of the redemption date and
the
39
principal amount of Notes to be redeemed by delivering an Officers' Certificate
at least 60 days before the redemption date (unless a shorter period is
satisfactory to the Trustee). If fewer than all of the Notes are being redeemed,
the Officers' Certificate must also specify a record date not less than 15 days
after the date of the notice of redemption is given to the Trustee, and the
Trustee will select the Notes to be redeemed pro rata, by lot or by any other
method the Trustee in its sole discretion deems fair and appropriate, in
denominations of $1,000 principal amount and multiples thereof. The Trustee will
notify the Company promptly of the Notes or portions of Notes to be called for
redemption. Notice of redemption must be sent by the Company or at the Company's
request, by the Trustee in the name and at the expense of the Company, to
Holders whose Notes are to be redeemed at least 30 days but not more than 60
days before the redemption date.
(b) The notice of redemption will identify the Notes to be
redeemed and will include or state the following:
(i) the redemption date;
(ii) the redemption price, including the portion thereof
representing any accrued interest;
(iii) the place or places where Notes are to be surrendered
for redemption;
(iv) Notes called for redemption must be so surrendered in
order to collect the redemption price;
(v) on the redemption date the redemption price will
become due and payable on Notes called for redemption, and interest on
Notes called for redemption will cease to accrue on and after the
redemption date;
(vi) if any Note is redeemed in part, on and after the
redemption date, upon surrender of such Note, new Notes equal in
principal amount to the unredeemed portion will be issued; and
(vii) if any Note contains a CUSIP or CINS number, no
representation is being made as to the correctness of the CUSIP or CINS
number either as printed on the Notes or as contained in the notice of
redemption and that the Holder should rely only on the other
identification numbers printed on the Notes.
(c) Once notice of redemption is sent to the Holders, Notes called
for redemption become due and payable at the redemption price on the redemption
date, and upon surrender of the Notes called for redemption, the Company shall
40
redeem such Notes at the redemption price. Commencing on the redemption date,
Notes redeemed will cease to accrue interest. Upon surrender of any Note
redeemed in part, the Holder will receive a new Note equal in principal amount
to the unredeemed portion of the surrendered Note.
Section 3.04. Offer to Purchase. (a) An "OFFER TO PURCHASE" means an
offer by the Company to purchase Notes as required by the Indenture. An Offer to
Purchase must be made by written offer (the "OFFER") sent to the Holders. The
Company will notify the Trustee at least 15 days (or such shorter period as is
acceptable to the Trustee) prior to sending the offer to Holders of its
obligation to make an Offer to Purchase, and the offer will be sent by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
(a) The offer must include or state the following as to the terms
of the Offer to Purchase:
(i) the provision of the Indenture pursuant to which the
Offer to Purchase is being made;
(ii) the aggregate principal amount of the outstanding
Notes offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined pursuant to the Indenture) (the "PURCHASE AMOUNT");
(iii) the purchase price, including the portion thereof
representing accrued interest;
(iv) an expiration date (the "EXPIRATION DATE") not less
than 30 days or more than 60 days after the date of the offer, and a
settlement date for purchase (the "PURCHASE DATE") not more than five
Business Days after the expiration date;
(v) information concerning the business of the Company
and its Subsidiaries which the Company in good faith believes will
enable the Holders to make an informed decision with respect to the
Offer to Purchase, at a minimum to include or incorporate by reference
(A) the most recent annual and quarterly
financial statements and "Management's Discussion and Analysis
of Financial Condition and Results of Operations" for the
Company,
(B) a description of material developments in
the Company's business subsequent to the date of the latest of
the
41
financial statements (including a description of the events
requiring the Company to make the Offer to Purchase), and
(C) if applicable, appropriate pro forma
financial information concerning the Offer to Purchase and the
events requiring the Company to make the Offer to Purchase;
(vi) a Holder may tender all or any portion of its Notes,
subject to the requirement that any portion of a Note tendered must be
in a multiple of $1,000 principal amount;
(vii) the place or places where Notes are to be surrendered
for tender pursuant to the Offer to Purchase;
(viii) each Holder electing to tender a Note pursuant to the
offer will be required to surrender such Note at the place or places
specified in the offer prior to the close of business on the expiration
date (such Note being, if the Company or the Trustee so requires, duly
endorsed or accompanied by a duly executed written instrument of
transfer);
(ix) interest on any Note not tendered, or tendered but
not purchased by the Company pursuant to the Offer to Purchase, will
continue to accrue;
(x) on the purchase date the purchase price will become
due and payable on each Note accepted for purchase pursuant to the
Offer to Purchase, and interest on Notes purchased will cease to accrue
on and after the purchase date;
(xi) Holders are entitled to withdraw Notes tendered by
giving notice, which must be received by the Company or the Trustee not
later than the close of business on the expiration date, setting forth
the name of the Holder, the principal amount of the tendered Notes, the
certificate number of the tendered Notes and a statement that the
Holder is withdrawing all or a portion of the tender;
(xii) (A) if Notes in an aggregate principal amount less
than or equal to the purchase amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company will purchase
all such Notes, and (B) if the Offer to Purchase is for less than all
of the outstanding Notes and Notes in an aggregate principal amount in
excess of the purchase amount are tendered and not withdrawn pursuant
to the offer, the Company will purchase Notes having an aggregate
principal amount equal to the purchase amount on a pro rata basis, with
adjustments so that only Notes in multiples of $1,000 principal amount
will be purchased;
42
(xiii) if any Note is purchased in part, new Notes equal in
principal amount to the unpurchased portion of the Note will be issued;
and
(xiv) if any Note contains a CUSIP or CINS number, no
representation is being made as to the correctness of the CUSIP or CINS
number either as printed on the Notes or as contained in the offer and
that the Holder should rely only on the other identification numbers
printed on the Notes.
(c) Prior to the purchase date, the Company will accept tendered
Notes for purchase as required by the Offer to Purchase and deliver to the
Trustee all Notes so accepted together with an Officers' Certificate specifying
which Notes have been accepted for purchase. On the purchase date the purchase
price will become due and payable on each Note accepted for purchase, and
interest on Notes purchased will cease to accrue on and after the purchase date.
The Trustee will promptly return to Holders any Notes not accepted for purchase
and send to Holders new Notes equal in principal amount to any unpurchased
portion of any Notes accepted for purchase in part.
(d) The Company will comply with Rule 14e-1 under the Exchange Act
and all other applicable laws in making any Offer to Purchase, and the above
procedures will be deemed modified as necessary to permit such compliance.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes. (a) The Company agrees to pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and the Indenture. Not later than 9:00 A.M. (New York City time) on
the due date of any principal of or interest on any Notes, or any redemption or
purchase price of the Notes, the Company will deposit with the Trustee (or
Paying Agent) money in immediately available funds sufficient to pay such
amounts, provided that if the Company or any Affiliate of the Company is acting
as Paying Agent, it will, on or before each due date, segregate and hold in a
separate trust fund for the benefit of the Holders a sum of money sufficient to
pay such amounts until paid to such Holders or otherwise disposed of as provided
in the Indenture. In each case the Company will promptly notify the Trustee of
its compliance with this paragraph.
(b) An installment of principal or interest will be considered
paid on the date due if the Trustee (or Paying Agent, other than the Company or
any Affiliate of the Company) holds on that date money designated for and
sufficient to pay the installment. If the Company or any Affiliate of the
Company acts as Paying
43
Agent, an installment of principal or interest will be considered paid on the
due date only if paid to the Holders.
(c) The Company agrees to pay interest on overdue principal and
overdue installments of interest at the rate per annum specified in the Notes.
(d) Payments in respect of the Notes represented by the Global
Notes are to be made by wire transfer of immediately available funds to the
accounts specified by the Holders of the Global Notes. With respect to
Certificated Notes, the Company will make all payments by mailing a check to
each Holder's registered address or, at the Company's option, by wire transfer
of immediately available funds to the accounts specified by the Holders thereof.
Section 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York or Wilmington,
Delaware, an office or agency where Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes and the Indenture may be
served. The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company fails to maintain any such required
office or agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served to the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be surrendered or presented for any of
such purposes and may from time to time rescind such designations. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 4.03. Existence. The Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and
the existence of each of its Restricted Subsidiaries in accordance with their
respective organizational documents, and the material rights, licenses and
franchises of the Company and each Restricted Subsidiary, provided that the
Company is not required to preserve any such right, license or franchise, or the
existence of any Restricted Subsidiary, if in the Company's judgment the
maintenance or preservation thereof is no longer desirable in the conduct of the
business of the Company and its Restricted Subsidiaries taken as a whole; and
provided further that this Section does not prohibit any transaction otherwise
permitted by Section 4.13 or Article 5.
44
Section 4.04. Payment of Taxes and Other Claims. The Company will pay
or discharge, and cause each of its Subsidiaries to pay or discharge before the
same become delinquent (a) all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or its income or
profits or property, and (b) all material lawful claims for labor, materials and
supplies that, if unpaid, might by law become a Lien upon the property of the
Company or any Subsidiary, other than any such tax, assessment, charge or claim
the amount, applicability or validity of which is being contested in good faith
by appropriate proceedings and for which adequate reserves, if necessary, have
been established.
Section 4.05. Maintenance of Properties and Insurance. (a) The Company
will cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries to be maintained and kept in good
condition, repair and working order as in the judgment of the Company may be
necessary so that the business of the Company and its Restricted Subsidiaries
may be properly and advantageously conducted at all times; provided that nothing
in this Section prevents the Company or any Restricted Subsidiary from
discontinuing the use, operation or maintenance of any of such properties or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company, desirable in the conduct of the business of the Company and its
Restricted Subsidiaries taken as a whole.
(b) The Company will provide or cause to be provided, for itself
and its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured against
by corporations similarly situated and owning like properties, including, but
not limited to, products liability insurance, physical damage insurance and
public liability insurance, with reputable insurers, in such amounts, with such
deductibles and by such methods as are customary for corporations similarly
situated in the industry in which the Company and its Restricted Subsidiaries
are then conducting business.
Section 4.06. Limitation on Debt and Disqualified or Preferred Stock.
(a) The Company:
(i) will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Debt; and
(ii) will not, and will not permit any Restricted
Subsidiary to, Incur any Disqualified Stock, or permit any of its
Restricted Subsidiaries to Incur any Preferred Stock (other than
Disqualified or Preferred Stock of Restricted Subsidiaries held by the
Company or a Wholly-Owned Restricted Subsidiary, so long as it is so
held);
45
provided that the Company or any Guarantor may Incur Debt and the Company or any
Guarantor may Incur Disqualified Stock if, on the date of the Incurrence, after
giving effect to the Incurrence and the receipt and application of the proceeds
therefrom, the Fixed Charge Coverage Ratio is not less than 2.0 to 1.
(b) Notwithstanding the foregoing, the Company and, to the extent
provided below, any Restricted Subsidiary may Incur the following ("PERMITTED
DEBT"):
(i) Debt of the Company and any Restricted Subsidiary
pursuant to the Credit Agreement, and Guarantees of such Debt by the
Company or any Restricted Subsidiary; provided that the aggregate
principal amount at any time outstanding under the Credit Agreement
does not exceed the greater of (A) $100.0 million, less the aggregate
amount of all such Debt under the Credit Agreement permanently repaid
pursuant to payments thereof in accordance with Section 4.13(c)(i) and
(B) the sum of the amounts equal to (x) 85% of the book value of the
accounts receivable of the Company and its consolidated Restricted
Subsidiaries and (y) 65% of the book value of the inventory of the
Company and its consolidated Restricted Subsidiaries (but excluding any
accounts receivable and inventory that are ineligible at such time for
inclusion in the calculation of a borrowing base or similar borrowing
limit (if any) under the Credit Agreement), in each case as of the most
recently ended fiscal quarter of the Company for which financial
statements have been provided (or, if not timely provided, required to
be provided) pursuant to Section 4.17.
(ii) Debt of the Company or any Restricted Subsidiary to
the Company or any Wholly Owned Restricted Subsidiary so long as such
Debt continues to be owed to the Company or a Wholly Owned Restricted
Subsidiary and which is, if the obligor is the Company or a Guarantor
and the obligee is not the Company or a Guarantor, subordinated in
right of payment to the Notes;
(iii) Debt of the Company pursuant to the Notes (but not
any Additional Notes) and Debt of any Guarantor pursuant to a Note
Guaranty of the Notes (including Additional Notes) and Debt of the
Company pursuant to the Convertible Notes outstanding on the Issue Date
and Debt of any Guarantor pursuant to a Guarantee of the Convertible
Notes;
(iv) Debt of the Company or any Restricted Subsidiary
("PERMITTED REFINANCING DEBT") constituting an extension or renewal of,
replacement of, or substitution for, or issued in exchange for, or the
net proceeds of which are used to repay, redeem, repurchase, refinance
or refund, including by way of defeasance, (all of the above, for
purposes of this clause, "REFINANCE") then outstanding Debt of the
Company or any
46
Restricted Subsidiary in an amount not to exceed the principal amount
of the Debt so refinanced, plus premiums, fees and expenses; provided
that
(A) in case the Debt to be refinanced is
subordinated in right of payment to the Notes, the new Debt,
by its terms or by the terms of any agreement or instrument
pursuant to which it is outstanding, is expressly made
subordinate in right of payment to the Notes at least to the
extent that the Debt to be refinanced is subordinated to the
Notes,
(B) the new Debt does not have a Stated Maturity
prior to the Stated Maturity of the Debt to be refinanced, and
the Average Life of the new Debt is at least equal to the
remaining Average Life of the Debt to be refinanced,
(C) in no event may Debt of the Company be
refinanced pursuant to this clause by means of any Debt of any
Restricted Subsidiary that is not a Guarantor and in no event
may Debt of a Guarantor be refinanced pursuant to this clause
by means of any Debt of any Restricted Subsidiary that is not
a Guarantor, and
(D) Debt Incurred pursuant to clauses (i), (ii),
(v), (vi), (ix), (x)(c), (xii) and (xiii) of this Section
4.06(b) may not be refinanced pursuant to this clause;
(v) Hedging Agreements of the Company or any Restricted
Subsidiary entered into in the ordinary course of business for the
purpose of limiting risks associated with the business of the Company
and its Restricted Subsidiaries and not for speculation;
(vi) Debt of the Company or any Restricted Subsidiary with
respect to letters of credit and bankers' acceptances issued in the
ordinary course of business and not supporting Debt, including letters
of credit supporting performance, surety or appeal bonds or
indemnification, adjustment of purchase price or similar obligations
incurred in connection with the disposition of any business or assets;
provided that the maximum liability in connection with any disposition
shall not exceed the gross proceeds actually received by the Company or
that Restricted Subsidiary in connection with the disposition;
(vii) Acquired Debt, provided that after giving effect to
the Incurrence thereof, the Company could Incur at least $1.00 of Debt
under Section 4.06(a);
47
(viii) Debt of the Company or any Restricted Subsidiary
outstanding on the Issue Date (and, for purposes of clause (iv) (D),
not constituting Permitted Debt under clauses (i), (ii), (v), (vi),
(ix) or (xii));
(ix) Guarantees by the Company or any Guarantor of any
Debt of the Company or any Restricted Subsidiary permitted to be
incurred under any other clause of this Section 4.06;
(x) Debt of Nordural and any of its Restricted
Subsidiaries (a) incurred to finance the expansion of the Nordural
primary aluminum reduction facility described in the Offering Circular
in an aggregate principal amount at any time outstanding not to exceed
(i) $160.0 million less (ii) the aggregate outstanding principal amount
of Permitted Refinancing Debt Incurred to refinance such Debt, (b)
incurred to refinance Debt of Nordural outstanding on the Issue Date or
(c) incurred pursuant to a revolving credit facility to finance working
capital needs of Nordural, in an aggregate principal amount at any time
outstanding not to exceed $25.0 million, and any Guarantee of any such
Debt incurred under (a), (b) or (c) of this clause (x) by any Nordural
Holding Company; provided that such Debt may only be incurred if (i)
such Debt is not Guaranteed by the Company or any other Restricted
Subsidiary of the Company (other than any Nordural Holding Companies)
unless Nordural is not subject to any restrictions or encumbrances set
forth in clause (a)(i) of Section 4.09 (other than those permitted by
clause (b)(ii) thereof), in which case such Debt may be so Guaranteed
(to the extent such Guarantee is otherwise permitted to be Incurred
under this covenant) and (ii) unless such Debt is permitted to be
Guaranteed by the Company pursuant to clause (i), the lenders thereof
have agreed or have been notified in writing that they will not have
any recourse to the stock or assets of the Company or any other
Restricted Subsidiary (other than any Nordural Holding Company);
(xi) (a) Debt (including Guarantees) of any Foreign
Restricted Subsidiary; provided that, on the date of the Incurrence,
after giving effect to the Incurrence and the receipt and application
of the proceeds therefrom, (i) the Fixed Charge Coverage Ratio of the
Company and its Restricted Subsidiaries, and the Fixed Charge Coverage
Ratio of such Foreign Restricted Subsidiary and its Restricted
Subsidiaries (calculated in accordance with the definition thereof as
if each reference to the Company was a reference to such subsidiary and
each reference to the Company's Restricted Subsidiaries is a reference
to such subsidiary's Subsidiaries that are Restricted Subsidiaries), is
not less than 2.0 to 1, in the case of the Company and its Restricted
Subsidiaries, and 2.5 to 1, in the case of the Foreign Restricted
Subsidiary and its Restricted Subsidiaries and (ii) the aggregate
principal amount of Debt of the Company's Foreign Restricted
48
Subsidiaries at the time outstanding does not exceed 50% of the Total
Assets of the Company's Foreign Restricted Subsidiaries as of the date
of Incurrence and (b) any Guarantee of such Debt (i) constituting a
Limited Recourse Parent Guaranty or (ii) by any Foreign Restricted
Subsidiary that is a Subsidiary of the Person Incurring such Debt under
this clause (xi);
(xii) Debt of the Company or any Restricted Subsidiary
consisting of the deferred purchase price for power pursuant to any
provision in a power contract that permits payment of a portion thereof
to be deferred; and
(xiii) other Debt of the Company or any Restricted
Subsidiary in an aggregate principal amount for all Debt under this
clause (xiii) at any time outstanding not to exceed $25.0 million.
(c) For purposes of determining compliance with Section 4.06, in
the event that an item of Debt or any portion thereof meets the criteria of more
than one of the categories of Permitted Debt described in clauses (b)(i) through
(xiii) above, or is entitled to be incurred pursuant to clause (a), the Company
shall, in its sole discretion, classify such item of Debt or any portion thereof
in any manner that complies with this covenant and such item of debt or portion
thereof will be treated as having been incurred pursuant to only the clause or
clauses designated by the Company.
(d) Notwithstanding anything to the contrary in this Section 4.06,
the maximum amount of Debt that the Company and its Restricted Subsidiaries may
Incur pursuant to this Section 4.06 shall not be deemed to be exceeded, with
respect to any outstanding Debt, solely as a result of fluctuations in the
exchange rate of currencies.
Section 4.07. Limitation on Restricted Payments. (a) The Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly
(the payments and other actions described in the following clauses being
collectively "RESTRICTED PAYMENTS"):
(i) declare or pay any dividend or make any distribution
on its Equity Interests (other than dividends or distributions paid in
the Company's Qualified Stock) held by Persons other than the Company
or any of its Wholly Owned Restricted Subsidiaries;
(ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company or any Restricted Subsidiary
held by Persons other than the Company or any of its Wholly Owned
Restricted Subsidiaries;
49
(iii) repay, redeem, repurchase, defease or otherwise
acquire or retire for value, or make any payment on or with respect to,
any Subordinated Debt except a payment of interest or principal at
Stated Maturity; or
(iv) make any Investment other than a Permitted
Investment;
unless, at the time of, and after giving effect to, the proposed Restricted
Payment:
(1) no Default has occurred and is continuing,
(2) the Company could Incur at least $1.00 of Debt under
Section 4.06(a), and
(3) the aggregate amount expended for all Restricted
Payments made on or after the Issue Date would not, subject to
paragraph (c), exceed the sum of
(A) 50% of the aggregate amount of the
Consolidated Net Income (or, if the Consolidated Net Income is
a loss, minus 100% of the amount of the loss) accrued on a
cumulative basis during the period, taken as one accounting
period, beginning on April 1, 2004 and ending on the last day
of the Company's most recently completed fiscal quarter for
which financial statements have been provided (or if not
timely provided, required to be provided) pursuant to Section
4.17 (whether through filing of a Form 10-Q or a Form 10-K for
such period or an earnings release filed on Form 8-K), plus
(B) subject to paragraph (c), the aggregate net
cash proceeds received by the Company (other than from a
Subsidiary) after the Issue Date from the issuance and sale of
its Qualified Equity Interests, including by way of issuance
of its Disqualified Equity Interests or Debt to the extent
since converted into Qualified Equity Interests of the
Company, plus
(C) an amount equal to the sum, for all
Unrestricted Subsidiaries, of the following:
(x) the cash return, after the Issue
Date, on Investments in an Unrestricted Subsidiary
made after the Issue Date pursuant to this paragraph
(a) as a result of any sale for cash, repayment,
redemption, liquidating distribution or other cash
realization (not included in Consolidated Net
Income), plus
50
(y) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the
fair market value of the assets less liabilities of
an Unrestricted Subsidiary (as determined in good
faith by the Board of Directors) at the time such
Unrestricted Subsidiary is designated a Restricted
Subsidiary,
not to exceed, in the case of any Unrestricted Subsidiary, the
amount of Investments made after the Issue Date by the Company
and its Restricted Subsidiaries in such Unrestricted
Subsidiary pursuant to this paragraph (a), plus
(D) the cash return, after the Issue Date, on
any other Investment made after the Issue Date pursuant to
this paragraph (a), as a result of any sale for cash,
repayment, redemption, liquidating distribution or other cash
realization (not included in Consolidated Net Income), not to
exceed the amount of such Investment so made.
The amount of any non-cash Restricted Payment will be deemed to be the
fair market value thereof, as determined in good faith by the Board of
Directors, whose determination will be conclusive and evidenced by a Board
Resolution.
(b) The foregoing will not prohibit:
(i) the payment of any dividend within 60 days after the
date of declaration thereof if, at the date of declaration, such
payment would comply with paragraph (a);
(ii) dividends or distributions by a Restricted Subsidiary
payable, on a pro rata basis or on a basis more favorable to the
Company (or the relevant Restricted Subsidiary holding the Capital
Stock of such Restricted Subsidiary, as applicable), to all holders of
any class of Capital Stock of such Restricted Subsidiary a majority of
which is held, directly or indirectly through Restricted Subsidiaries,
by the Company;
(iii) the repayment, redemption, repurchase, defeasance or
other acquisition or retirement for value of Subordinated Debt with the
proceeds of, or in exchange for, Permitted Refinancing Debt;
(iv) the purchase, redemption or other acquisition or
retirement for value of Equity Interests of the Company in exchange
for, or out of the proceeds of a substantially concurrent offering of,
Qualified Equity Interests of the Company;
51
(v) the repayment, redemption, repurchase, defeasance or
other acquisition or retirement of Subordinated Debt of the Company in
exchange for, or out of the proceeds of, a substantially concurrent
offering of, Qualified Equity Interests of the Company;
(vi) the purchase, redemption or other acquisition or
retirement for value of Equity Interests of the Company held by
officers, directors or employees or former officers, directors or
employees (or their estates or beneficiaries), (a) upon death,
disability, retirement, severance or termination of employment, or
pursuant to any agreement under which the Equity Interests were issued;
provided that the aggregate cash consideration paid therefor after the
Issue Date does not exceed an aggregate amount of $8.0 million; or (b)
which Equity Interests consist of performance shares or options (or
shares issued upon the vesting of performance shares or the exercise of
options) that are repurchased or withheld upon vesting of such
performance shares or exercise of such options solely in order to
satisfy tax withholding obligations of such persons as a result
thereof;
(vii) (A) Investments in any Joint Venture or Unrestricted
Subsidiary organized to construct, acquire, own and/or operate a
facility in a Permitted Business (including, without limitation, any
Guarantees), in an aggregate amount that, together with all other
Investments made pursuant to this clause (vii)(A), does not exceed
$35.0 million and (B) any Limited Recourse Guarantee by any Joint
Venture Holding Company holding such Investment to secure Non-Recourse
Debt of such Joint Venture or Unrestricted Subsidiary;
(viii) any other Restricted Payment which, together with all
other Restricted Payments made pursuant to this clause (viii) on or
after the Issue Date, does not exceed $20.0 million;
(ix) the payment by the Company or any Restricted
Subsidiary of (a) any purchase price adjustments in connection with the
acquisition of the Hawesville Facility and (b) any post-closing
purchase price adjustments in connection with the acquisition of
Nordural, in each case pursuant to the provisions of the relevant
purchase agreement as in effect on the Issue Date; and
(x) any payment by the Company to any holder of the
Company's Convertible Notes in connection with the conversion,
repurchase or redemption thereof, which payment is permitted or
required by the terms of such notes as in effect on the Issue Date and
any open market purchases or tender offers in respect of such notes;
52
provided that, in the case of clauses (vi), (vii) and (viii) no Default has
occurred and is continuing or would occur as a result thereof.
(c) Proceeds of the issuance of Qualified Equity Interests will be
included under clause (3) of paragraph (a) only to the extent they are not
applied as described in clause (iv) or (v) of paragraph (b). Restricted Payments
permitted pursuant to clauses (ii) (to the extent paid to the Company or any
Restricted Subsidiary of the Company), (iii), (iv), (v), (vi), (vii), (viii),
(ix) or (x) of paragraph (b) will not be included in making the calculations
under clause (3) of paragraph (a).
Section 4.08. Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, incur or permit to
exist any Lien of any nature whatsoever on any of its properties or assets,
whether owned at the Issue Date or thereafter acquired, other than Permitted
Liens, provided, however, that the foregoing will not apply to the extent the
Company or any Restricted Subsidiary effectively provides that the Notes shall
be secured equally and ratably with (or, if the obligation to be secured by the
Lien is subordinated in right of payment to the Notes or any Note Guaranty,
prior to) the obligations so secured for so long as such obligations are so
secured.
Section 4.09. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. (a) Except as provided in paragraph (b), the
Company will not, and will not permit any Restricted Subsidiary to, create or
otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to
(i) pay dividends or make any other distributions on any
Equity Interests of the Restricted Subsidiary owned by the Company or
any other Restricted Subsidiary,
(ii) pay any Debt or other obligation owed to the Company
or any other Restricted Subsidiary,
(iii) make loans or advances to the Company or any other
Restricted Subsidiary, or
(iv) transfer any of its property or assets to the Company
or any other Restricted Subsidiary.
(b) The provisions of paragraph (a) do not apply to any
encumbrances or restrictions
53
(i) existing on the Issue Date in the Credit Agreement,
the Indenture or any other agreements in effect on the Issue Date, and
any extensions, renewals, replacements or refinancings of any of the
foregoing or of any subsequent extension, renewal, replacement or
refinancing thereof; provided that the encumbrances and restrictions in
the extension, renewal, replacement or refinancing are, taken as a
whole, no more adverse in any material respect to the Noteholders than
the encumbrances or restrictions being extended, renewed, replaced or
refinanced;
(ii) existing under or by reason of applicable law;
(iii) existing
(A) with respect to any Person, or with respect
to any property or assets, at the time the Person or property
or assets are acquired by the Company or any Restricted
Subsidiary, or
(B) with respect to any Unrestricted Subsidiary
at the time it is designated or is deemed to become a
Restricted Subsidiary,
which encumbrances or restrictions (x) are not applicable to any other
Person or the property or assets of any other Person and (y) were not
put in place in anticipation of such event; and any extensions,
renewals, replacements or refinancings of any of the foregoing, or of
any subsequent extension, renewal, replacement or refinancing thereof,
provided the encumbrances and restrictions in the extension, renewal,
replacement or refinancing are, taken as a whole, no more adverse in
any material respect to the Noteholders than the encumbrances or
restrictions being extended, renewed, replaced or refinanced;
(iv) of the type described in clause (a)(iv) arising or
agreed to
(A) in the ordinary course of business that
restrict in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease
or license,
(B) with respect to any assets comprising a
Permitted Business in which the Company or any Restricted
Subsidiary has ownership of an undivided interest, pursuant to
the agreements under which such interest is owned or
maintained, including, without limitation, options, put and
call arrangements, rights of first refusal and similar rights,
provided that such restrictions are consistent with the
Company's past practice, or
54
(C) by virtue of any Permitted Lien on, or
agreement to transfer, option or similar right with respect
to, any property or assets of, the Company or any Restricted
Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of or
property and assets of the Restricted Subsidiary that is permitted by
the Indenture;
(vi) on the ability of Restricted Subsidiaries to
consummate transactions of the type described in paragraph (a)(i),
(ii), (iii) or (iv) provided for by any credit agreement or security
document relating to Debt permitted to be incurred under the Indenture;
provided that such restrictions are not more restrictive than the
restrictions contained in the Indenture or the Credit Agreement;
(vii) required pursuant to Section 4.06(b)(ii);
(viii) imposed on any Joint Venture pursuant to customary
limitations contained in the constituent documents and agreements
governing such Joint Venture; or
(ix) existing under any credit agreement or security
document relating to Debt incurred pursuant to clause (b)(x) or (b)(xi)
under Section 4.06 or Permitted Refinancing Debt in respect thereof;
provided that (a) such restrictions apply only to the Persons Incurring
such Debt (including Guarantees thereof) and their Subsidiaries and (b)
such Debt is not Guaranteed by the Company.
Section 4.10. Limitation on Sale or Issuance of Equity Interests of
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, sell or issue any Equity
Interests of a Restricted Subsidiary unless
(a) the sale or issuance is to the Company or a Wholly
Owned Restricted Subsidiary,
(b) the sale or issuance is of Capital Stock representing
directors' qualifying shares or Capital Stock required by applicable
law to be held by a Person other than the Company or a Restricted
Subsidiary,
(c) (i) if, after giving pro forma effect to the sale or
issuance, the Restricted Subsidiary upon such sale or issuance would no
longer be a Restricted Subsidiary and all remaining Investments, if
any, of the Company and the Restricted Subsidiaries in such Person are
permitted
55
under Section 4.07 and (ii) the Company complies with Section 4.13 with
respect to the sale or issuance, to the extent applicable;
(d) (i) such sale or issuance is a sale or issuance of
Common Stock of a Restricted Subsidiary that is a Guarantor and remains
a Restricted Subsidiary that is a Guarantor after giving effect to the
sale, and (ii) the Company complies with Section 4.13 with respect to
the sale or issuance, to the extent applicable; or
(e) such sale or issuance is a sale or issuance of
Disqualified Stock permitted under Section 4.06.
Section 4.11. Guaranties by Restricted Subsidiaries. If the Company or
any of its Restricted Subsidiaries acquires or creates a Domestic Restricted
Subsidiary (other than any Foreign-Owned Parent Holding Company) after the Issue
Date, the new Domestic Restricted Subsidiary must provide a Note Guaranty until
such Guaranty is released pursuant to Section 10.09. In addition, from and after
the repayment date, Century Aluminum of Kentucky LLC must provide a Note
Guaranty until such guaranty is released pursuant to Section 10.09.
A Restricted Subsidiary required to provide a Note Guaranty shall
execute a supplemental indenture substantially in the form of Exhibit B, and
deliver an Opinion of Counsel to the Trustee to the effect that the supplemental
indenture has been duly authorized, executed and delivered by the Restricted
Subsidiary and constitutes a valid and binding obligation of the Restricted
Subsidiary, enforceable against the Restricted Subsidiary in accordance with its
terms (subject to customary exceptions).
Section 4.12. Repurchase of Notes upon a Change of Control. Not later
than 30 days following a Change of Control, the Company will make an Offer to
Purchase all outstanding Notes at a purchase price equal to 101% of the
principal amount plus accrued interest to the date of purchase.
Section 4.13. Limitation on Asset Sales. The Company will not, and will
not permit any Restricted Subsidiary to, make any Asset Sale unless the
following conditions are met:
(a) The Asset Sale is for fair market value, as determined in good
faith by the Board of Directors.
(b) At least 75% of the consideration consists of cash received at
closing.
For purposes of this clause (b):
56
(i) Debt (other than Subordinated Debt) or other
obligations of the Company or a Restricted Subsidiary assumed by the
purchaser pursuant to a customary novation agreement, and
(ii) instruments or securities received from the purchaser
that are promptly, but in any event within 30 days of the closing,
converted by the Company to cash, to the extent of the cash actually so
received shall be considered cash received at closing.
(c) An amount equal to the Net Cash Proceeds from the Asset Sale
may be used
(i) to permanently repay Debt under the Credit Agreement,
secured Debt of the Company or any Guarantor or Debt of any Restricted
Subsidiary that is not a Guarantor (and in the case of a revolving
credit, permanently reduce the commitment thereunder by such amount),
or
(ii) to acquire all or substantially all of the assets of
a Permitted Business, or a majority of the Voting Stock of another
Person that thereupon becomes a Restricted Subsidiary engaged in a
Permitted Business, or to make capital expenditures or otherwise
acquire long-term assets (including an undivided interest therein) that
are to be used in a Permitted Business.
(d) The Net Cash Proceeds of an Asset Sale not applied pursuant to
clause (c) within 360 days of the Asset Sale constitute "EXCESS PROCEEDS".
Excess Proceeds of less than $10.0 million will be carried forward and
accumulated. When accumulated Excess Proceeds equal or exceed $10.0 million, the
Company must, within 30 days, make an Offer to Purchase Notes having a principal
amount equal to
(i) accumulated Excess Proceeds, multiplied by
(ii) a fraction (x) the numerator of which is equal to the
outstanding principal amount of the Notes and (y) the denominator of
which is equal to the outstanding principal amount of the Notes and all
pari passu Debt similarly required to be repaid, redeemed or tendered
for in connection with the Asset Sale,
rounded down to the nearest $1,000. The purchase price for the Notes will be
100% of the principal amount plus accrued interest to the date of purchase. Upon
completion of the Offer to Purchase, Excess Proceeds will be reset at zero, and
any Excess Proceeds remaining after consummation of the Offer to Purchase may be
used for any purpose not otherwise prohibited by the Indenture.
57
Section 4.14. Limitation on Transactions with Shareholders and
Affiliates. (a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction or arrangement (including, without limitation, the purchase, sale,
lease or exchange of property or assets, or the rendering of any service) with
(x) any holder, or any Affiliate of any holder, of 5% or more of any class of
Capital Stock of the Company or (y) any Affiliate of the Company or any
Restricted Subsidiary (a "RELATED PARTY TRANSACTION"), except upon fair and
reasonable terms no less favorable to the Company or the Restricted Subsidiary
than could be obtained in a comparable arm's-length transaction with a Person
that is not an Affiliate of the Company.
(b) Any Related Party Transaction or series of Related Party
Transactions with an aggregate value in excess of $5.0 million must first be
approved by a majority of the members of the Board of Directors who are
disinterested in the subject matter of the transaction (the "DISINTERESTED
DIRECTORS") pursuant to a Board Resolution delivered to the Trustee. Prior to
entering into any Related Party Transaction or series of Related Party
Transactions with an aggregate value in excess of $25.0 million, the Company
must in addition obtain and deliver to the Trustee a favorable written opinion
from an investment banking, valuation or appraisal firm as to the fairness of
the consideration to be received or paid by the Company and its Restricted
Subsidiaries from a financial point of view. In the event of any Related Party
Transaction that consists of any asset acquisition or disposition and a related
purchase or supply agreement, the transaction shall be considered as a whole in
determining its compliance with this covenant.
The foregoing paragraphs do not apply to
(i) any transaction between the Company and any of its
Restricted Subsidiaries or between Restricted Subsidiaries of the
Company;
(ii) the payment of reasonable and customary regular fees
to directors of the Company who are not employees of the Company;
(iii) any Restricted Payments of a type described in
Section 4.07(a)(i) and (ii) if permitted by that covenant;
(iv) transactions or payments pursuant to any employee,
officer or director compensation or benefit plans or arrangements
entered into in the ordinary course of business;
(v) the entering into of Hedging Agreements or similar
arrangements with Glencore or any of its Affiliates, or any amendment,
58
modification, replacement, settlement or termination thereof, on a
basis consistent with past practice and upon fair and reasonable terms
no less favorable in any material respect to the Company or the
Restricted Subsidiary than could reasonably be expected to be obtained
in a comparable arms'-length transaction;
(vi) agreements or arrangements with Glencore or any of
its Affiliates relating to the procurement or sale of raw materials or
aluminum products or the tolling of alumina; provided that such
transactions are upon fair and reasonable terms no less favorable in
any material respect to the Company or the Restricted Subsidiary than
could reasonably be expected to be obtained in a comparable
arms'-length transaction;
(vii) (A) the issuance and sale of Qualified Equity
Interests of the Company and (B) the sale to any Affiliate of the
Company of any securities of the Company offered and sold in a broadly
distributed underwritten offering (whether registered or pursuant to
Rule 144A or Regulation S); provided that such sale is at a price to
the Company no lower than the price paid to the Company with respect to
other securities sold in such offering;
(viii) agreements or arrangements with any Person that owns
the Gramercy alumina facility or the Jamaican bauxite mining operations
on the terms described in the Offering Circular under "The Planned
Gramercy Acquisition", in each case as amended, modified or replaced
from time to time, including any subsequent replacements, so long as
the amended, modified or new agreement or arrangement, taken as a
whole, is not materially less favorable to the Company and its
Restricted Subsidiaries than the agreements amended, modified or
replaced;
(ix) transactions between the Company or any Restricted
Subsidiary and any Joint Venture or Unrestricted Subsidiary of the
Company entered into in the ordinary course of business; provided that
such transactions are upon fair and reasonable terms not materially
less favorable to the Company or the Restricted Subsidiary than could
be obtained in a comparable arms'-length transaction and are approved
by the Board of Directors; and
(x) transactions pursuant to any contract or agreement in
effect on the Issue Date, in each case as amended, modified or
replaced, from time to time, including any subsequent replacements, so
long as the amended, modified or new agreement, taken as a whole, is
not materially less favorable to the Company and its Restricted
Subsidiaries than those in effect on the Issue Date.
59
Section 4.15. Line of Business. The Company will not, and will not
permit any of its Restricted Subsidiaries, to engage in any business other than
a Permitted Business (including indirectly, through its interest in a Joint
Venture that is not a Restricted Subsidiary), except to an extent that so doing
would not be material to the Company and its Restricted Subsidiaries, taken as a
whole.
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors may designate any Subsidiary, including a newly
acquired or created Subsidiary, to be an Unrestricted Subsidiary if it meets the
following qualifications and the designation would not cause a Default.
(i) Such Subsidiary does not own any Capital Stock of the
Company or any Restricted Subsidiary or hold any Debt of, or any Lien
on any property of, the Company or any Restricted Subsidiary.
(ii) At the time of designation, the designation would be
permitted under Section 4.07.
(iii) To the extent the Debt of the Subsidiary is not
Non-Recourse Debt, any Guarantee or other credit support thereof by the
Company or any Restricted Subsidiary is permitted under Section 4.06
and Section 4.07.
(iv) The Subsidiary is not party to any transaction or
arrangement with the Company or any Restricted Subsidiary that would
not be permitted under Section 4.14.
(v) Neither the Company nor any Restricted Subsidiary has
any obligation to subscribe for additional Equity Interests of the
Subsidiary or to maintain or preserve its financial condition or cause
it to achieve specified levels of operating results except to the
extent permitted by Section 4.06 and Section 4.07.
Once so designated the Subsidiary will remain an Unrestricted Subsidiary,
subject to paragraph (b).
(b) (i) A Subsidiary previously designated an Unrestricted
Subsidiary which at any time fails to meet the qualifications set forth in
paragraph (a) will be deemed to become at that time a Restricted Subsidiary,
subject to the consequences set forth in paragraph (d).
(ii) The Board of Directors may designate an Unrestricted
Subsidiary to be a Restricted Subsidiary if the designation would not
cause a Default.
(c) Upon a Restricted Subsidiary becoming an Unrestricted
Subsidiary,
60
(i) all existing Investments of the Company and the
Restricted Subsidiaries therein will be deemed made at that time;
(ii) all existing transactions between it and the Company
or any Restricted Subsidiary will be deemed entered into at that time;
(iii) it will be released at that time from its Note
Guaranty, if any; and
(iv) it will cease to be subject to the provisions of the
Indenture as a Restricted Subsidiary.
(d) Upon an Unrestricted Subsidiary becoming, or being deemed to
become, a Restricted Subsidiary,
(i) all of its Debt and Disqualified or Preferred Stock
will be deemed Incurred at that time for purposes of Section 4.06 but
will not be considered the sale or issuance of Equity Interests for
purposes of Section 4.10 or Section 4.13;
(ii) Investments therein previously charged under Section
4.07 will be credited thereunder;
(iii) it may be required to issue a Note Guaranty of the
Notes pursuant to Section 4.11; and
(iv) it will thenceforward be subject to the provisions of
the Indenture as a Restricted Subsidiary.
(e) Any designation by the Board of Directors of a Subsidiary as a
Restricted Subsidiary or Unrestricted Subsidiary will be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to the designation and an Officer's Certificate certifying that
the designation complied with the foregoing provisions.
Section 4.17. Financial Reports. (a) Whether or not the Company is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company must provide the Trustee and Noteholders within the time
periods specified in those sections with
(i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such forms,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to annual
information only, a report thereon by the Company's certified
independent accountants, and
61
(ii) all current reports that would be required to be
filed with the Commission on Form 8-K if the Company were required to
file such reports.
In addition, whether or not required by the Commission, the Company
will, if the Commission will accept the filing, file a copy of all of the
information and reports referred to in clauses (1) and (2) with the Commission
for public availability within the time periods specified in the Commission's
rules and regulations. In addition, the Company will make the information and
reports available to securities analysts and prospective investors upon request.
(b) For so long as any of the Notes remain outstanding and
constitute "restricted securities" under Rule 144, the Company and the
Guarantors will furnish to the Holders of the Notes and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(c) All obligors on the Notes will comply with Section 314(a) of
the Trust Indenture Act.
(d) Delivery of these reports and information to the Trustee is
for informational purposes only and the Trustee's receipt of them will not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.18. Reports to Trustee. (a) The Company and each Guarantor
will deliver to the Trustee within 120 days after the end of each fiscal year of
the Company a certificate, executed by officers of the Company and each
Guarantor, stating that the Company and each Guarantor has fulfilled its
obligations hereunder or, if there has been a Default, specifying the Default
and its nature and status.
(b) The Company will deliver to the Trustee, as soon as possible
and in any event within 30 days after the Company becomes aware or should
reasonably become aware of the occurrence of a Default, an Officers' Certificate
setting forth the details of the Default, and the action which the Company
proposes to take with respect thereto.
(c) The Company will deliver to the Trustee within 120 days after
the end of each fiscal year of the Company a written statement by the Company's
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Notes as they relate to
accounting matters, and (ii) whether, in connection with their audit
examination,
62
any Default has come to their attention and, if a Default has come to their
attention, specifying the nature and period of the existence thereof.
(d) The Company will notify the Trustee in writing when any Notes
become listed on any national securities exchange and of any delisting.
Section 4.19. Limitation on Applicability of Certain Sections if Notes
Rated Investment Grade. Notwithstanding anything herein to the contrary, the
Company's obligations to comply with Section 4.06, Section 4.07, Section 4.09,
Section 4.10, Section 4.13, Section 4.14 and Section 5.01(a)(iii)(C) and (D)
will terminate and cease to have any further effect from and after the first
date when the Notes are rated Investment Grade.
ARTICLE 5
CONSOLIDATION, MERGER OR SALE OF ASSETS
Section 5.01. Consolidation, Merger or Sale of Assets by the Company;
No Lease of All or Substantially All Assets.
(a) The Company will not:
(i) consolidate with or merge with or into any Person, or
(ii) sell, convey, transfer, or otherwise dispose of all
or substantially all of the assets of the Company and its consolidated
Subsidiaries, as an entirety or substantially as an entirety, in one
transaction or a series of related transactions, to any Person or
(iii) permit any Person to merge with or into the Company
unless
(A) either (x) the Company is the continuing
Person or (y) the resulting, surviving or transferee Person is
a corporation organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and
expressly assumes by supplemental indenture all of the
obligations of the Company under the Indenture, the Notes and
the Registration Rights Agreement;
(B) immediately after giving effect to the
transaction, no Default has occurred and is continuing;
(C) immediately after giving effect to the
transaction on a pro forma basis, the Company or the
resulting, surviving or
63
transferee Person has a Consolidated Net Worth (without taking
into account any purchase accounting adjustments) equal to or
greater than the Consolidated Net Worth of the Company
immediately prior to the transaction;
(D) immediately after giving effect to the
transaction on a pro forma basis, the Company or the
resulting, surviving or transferee Person could Incur at least
$1.00 of Debt under Section 4.06(a); and
(E) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that the consolidation, merger or transfer and the
supplemental indenture (if any) comply with the Indenture;
provided that clauses (B) through (D) do not apply (i) to the consolidation or
merger of the Company with or into a Wholly Owned Restricted Subsidiary or the
consolidation or merger of a Wholly Owed Restricted Subsidiary with or into the
Company or (ii) if, in the good faith determination of the Board of Directors of
the Company, whose determination is evidenced by a Board Resolution, the sole
purpose of the transaction is to change the jurisdiction of incorporation of the
Company.
(b) The Company shall not lease all or substantially all of the
assets of the Company and its consolidated Subsidiaries, whether in one
transaction or a series of transactions, to one or more other Persons.
(c) Upon the consummation of any transaction effected in
accordance with these provisions, if the Company is not the continuing Person,
the resulting, surviving or transferee Person will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Indenture with the same effect as if such successor Person had been named as
the Company in the Indenture. Upon such substitution, unless the successor is
one or more of the Company's Subsidiaries, the Company will be released from its
obligations under the Indenture and the Notes.
Section 5.02. Consolidation, Merger or Sale of Assets by a Guarantor.
(a) No Guarantor may:
(i) consolidate with or merge with or into any Person, or
(ii) sell, convey, transfer or dispose of, all or
substantially all its assets as an entirety or substantially as an
entirety, in one transaction or a series of related transactions, to
any Person, or
64
(iii) permit any Person to merge with or into the Guarantor
unless
(A) the other Person is the Company or any
Wholly Owned Restricted Subsidiary that is a Guarantor or
becomes a Guarantor concurrently with the transaction; or
(B) (1) either (x) the Guarantor is the
continuing Person or (y) the resulting, surviving or
transferee Person expressly assumes by supplemental indenture
all of the obligations of the Guarantor under the Indenture,
its Note Guaranty and the Registration Rights Agreement; and
(2) immediately after giving effect to
the transaction, no Default has occurred and is
continuing; or
(C) the transaction constitutes a sale or other
disposition (including by way of consolidation or merger) of
the Guarantor or the sale or disposition of all or
substantially all the assets of the Guarantor (in each case
other than to the Company or a Restricted Subsidiary)
otherwise permitted by the Indenture.
(b) In connection with, and as a condition to, any transaction
subject to Section 5.02, the Company shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the consolidation,
merger or transfer and the supplemental indenture (if any) comply with the
Indenture.
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Events of Default. An "EVENT OF DEFAULT" occurs if
(a) the Company defaults in the payment of the principal
of any Note when the same becomes due and payable at maturity, upon
acceleration or redemption, or otherwise;
(b) the Company defaults in the payment of interest
(including any Additional Interest) on any Note when the same becomes
due and payable, and the default continues for a period of 30 days;
(c) the Company fails to make an Offer to Purchase and
thereafter accept and pay for Notes tendered when and as required
65
pursuant to Section 4.12 or Section 4.13, or the Company or any
Guarantor fails to comply with Article 5;
(d) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company in the
Indenture or under the Notes and the default or breach continues for a
period of 60 consecutive days after written notice to the Company by
the Trustee or to the Company and the Trustee by the Holders of 25% or
more in aggregate principal amount of the Notes;
(e) there occurs with respect to any Debt of the Company
or any of its Restricted Subsidiaries having an outstanding principal
amount of $10.0 million or more in the aggregate for all such Debt of
all such Persons (i) an event of default that has caused the holder
thereof to declare such Debt to be due and payable prior to its
scheduled maturity or (ii) failure to make a principal payment when due
and such defaulted payment is not made, waived or extended within the
applicable grace period;
(f) one or more final judgments or orders for the payment
of money are rendered against the Company or any of its Restricted
Subsidiaries and are not paid or discharged, and there is a period of
60 consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to
exceed $10.0 million (in excess of amounts which the Company's
insurance carriers have agreed to pay under applicable policies) during
which a stay of enforcement, by reason of a pending appeal or
otherwise, is not in effect (a "JUDGMENT DEFAULT");
(g) an involuntary case or other proceeding is commenced
against the Company or any Significant Restricted Subsidiary with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such involuntary case
or other proceeding remains undismissed and unstayed for a period of 60
days; or an order for relief is entered against the Company or any
Significant Restricted Subsidiary under the federal bankruptcy laws as
now or hereafter in effect;
(h) the Company or any of its Significant Restricted
Subsidiaries (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case
under any such law, (ii) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar
66
official of the Company or any of its Significant Restricted
Subsidiaries or for all or substantially all of the property and assets
of the Company or any of its Significant Restricted Subsidiaries or
(iii) effects any general assignment for the benefit of creditors (an
event of default specified in clause (g) or (h) a "BANKRUPTCY
DEFAULT"); or
(i) any Note Guaranty of any Significant Restricted
Subsidiary ceases to be in full force and effect, other than in
accordance with the terms of the Indenture, or any such Guarantor
denies or disaffirms its obligations under its Note Guaranty.
Section 6.02. Acceleration. (a) If an Event of Default, other than a
bankruptcy default with respect to the Company, occurs and is continuing under
the Indenture, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, by written notice to the Company (and to
the Trustee if the notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal of and accrued interest on
the Notes to be immediately due and payable. Upon a declaration of acceleration,
such principal and interest will become immediately due and payable. If a
bankruptcy default occurs with respect to the Company, the principal of and
accrued interest on the Notes then outstanding will become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
(b) The Holders of a majority in principal amount of the
outstanding Notes by written notice to the Company and to the Trustee may waive
all past defaults and rescind and annul a declaration of acceleration and its
consequences if
(i) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, and interest on the
Notes that have become due solely by the declaration of acceleration,
have been cured or waived, and
(ii) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an express
trust any available remedy by proceeding at law or in equity to collect the
payment of principal of and interest on the Notes or to enforce the performance
of any provision of the Notes or the Indenture, and any recovery of judgment
shall be for the ratable benefit of the Holders of the Notes. 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.
67
Section 6.04. Waiver of Past Defaults. Except as otherwise provided in
Sections 6.02, 6.07 and 9.02, the Holders of a majority in principal amount of
the outstanding Notes may, by notice to the Trustee, waive an existing Default
and its consequences. Upon such waiver, the Default will cease to exist, and any
Event of Default arising therefrom will be deemed to have been cured, but no
such waiver will extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05. Control by Majority. The Holders of a majority in
aggregate principal amount of the outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or the Indenture,
that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders of
Notes not joining in the giving of such direction, and may take any other action
it deems proper that is not inconsistent with any such direction received from
Holders of Notes.
Section 6.06. Limitation on Suits. A Holder may not institute any
proceeding, judicial or otherwise, with respect to the Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy under
the Indenture or the Notes, unless:
(a) the Holder has previously given to the Trustee
written notice of a continuing Event of Default;
(b) Holders of at least 25% in aggregate principal amount
of outstanding Notes have made written request to the Trustee to
institute proceedings in respect of the Event of Default in its own
name as Trustee under the Indenture;
(c) Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) during such 60-day period, the Holders of a majority
in aggregate principal amount of the outstanding Notes have not given
the Trustee a direction that is inconsistent with such written request.
Section 6.07. Rights of Holders to Receive Payment. Notwithstanding
anything to the contrary, the right of a Holder of a Note to receive payment of
68
principal of or interest on its Note on or after the Stated Maturities thereof,
or to bring suit for the enforcement of any such payment on or after such
respective dates, may not be impaired or affected without the consent of that
Holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default in
payment of principal or interest specified in clause (1) or (2) of Section 6.01
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust for the whole amount of principal and accrued
interest remaining unpaid, together with interest on overdue principal and,
overdue installments of interest, in each case at the rate specified in the
Notes, and such further amount as is sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee hereunder.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file
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 any other amounts due the Trustee hereunder) and the
Holders allowed in any judicial proceedings relating to the Company or any
Guarantor or their respective creditors or property, and is entitled and
empowered to collect, receive and distribute any money, securities or other
property payable or deliverable upon conversion or exchange of the Notes or upon
any such claims. Any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, if the
Trustee consents 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 agent and counsel, and any other
amounts due the Trustee hereunder. Nothing in the Indenture will be deemed to
empower 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 thereof, 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 for all amounts due hereunder;
Second: to Holders for amounts then due and unpaid for
principal of and interest on the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for principal and interest; and
69
Third: to the Company or relevant Guarantor or as a court of
competent jurisdiction may direct.
The Trustee, upon written notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section.
Section 6.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted a proceeding to enforce any right or remedy under the
Indenture and the proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to the Holder, then, subject
to any determination in the proceeding, the Company, any Guarantors, the Trustee
and the Holders will be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Company, any
Guarantors, the Trustee and the Holders will continue as though no such
proceeding had been instituted.
Section 6.12. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under the Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court may require any party
litigant in such suit (other than the Trustee) to file an undertaking to pay the
costs of the suit in the manner and to the extent provided in the Trust
Indenture Act, and the court may assess reasonable costs, including reasonable
attorneys fees, against any party litigant (other than the Trustee) 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 a Holder to enforce
payment of principal of or interest on any Note on the respective due dates, or
a suit by Holders of more than 10% in principal amount of the outstanding Notes.
Section 6.13. Rights and Remedies Cumulative. No right or remedy
conferred or reserved to the Trustee or to the Holders under this Indenture is
intended to be exclusive of any other right or remedy, and all such rights and
remedies are, to the extent permitted by law, cumulative and in addition to
every other right and remedy hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or exercise of any right or remedy hereunder,
or otherwise, will not prevent the concurrent assertion or exercise of any other
right or remedy.
Section 6.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default will impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
70
Section 6.15. Waiver of Stay, Extension or Usury Laws. The Company and
each Guarantor covenants, to the extent that it may lawfully do so, that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company or the Guarantor from paying all
or any portion of the principal of, or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of the Indenture. The Company and each
Guarantor hereby expressly waives, to the extent that it may lawfully do so, all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
THE TRUSTEE
Section 7.01. General. (a) The duties and responsibilities of the
Trustee are as provided by the Trust Indenture Act and as set forth herein.
Whether or not expressly so provided, every provision of the Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee is subject to this Article.
(b) Except during the continuance of an Event of Default, the
Trustee need perform only those duties that are specifically set forth in the
Indenture and no others, and no implied covenants or obligations will be read
into the Indenture against the Trustee. In case an Event of Default has occurred
and is continuing, the Trustee shall exercise those rights and powers vested in
it by the Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of the Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct.
Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
(a) In the absence of bad faith on its part, the Trustee
may rely, and will be protected in acting or refraining from acting,
upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need
71
not investigate any fact or matter stated in any such document, but, in
the case of any document which is specifically required to be furnished
to the Trustee pursuant to any provision hereof, the Trustee shall
examine the document to determine whether it conforms to the
requirements of the Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
The Trustee, in its discretion, may make further inquiry or
investigation into such facts or matters as it sees fit.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel
conforming to Section 11.05 and the Trustee will not be liable for any
action it takes or omits to take in good faith in reliance on the
certificate or opinion.
(c) The Trustee may act through its attorneys and agents
and will not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Trustee will be under no obligation to exercise
any of the rights or powers vested in it by the Indenture at the
request or direction of any of the Holders, unless such Holders 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.
(e) The Trustee will not be liable for any action it
takes or omits to take in good faith that it believes to be authorized
or within its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance with
Section 6.05 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under the Indenture.
(f) The Trustee may consult with counsel, and the written
advice of such counsel or any Opinion of Counsel will be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(g) No provision of the Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder, or in
the exercise of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(h) The Trustee shall not be charged with knowledge of
any Default or Event of Default with respect to the Notes unless either
(i) a
72
Responsible Officer of the Trustee shall have actual knowledge thereof
or (ii) a written notice of such Default or Event of Default shall have
been given to the Trustee by the Company or any Holder of Notes.
(i) The permissive rights of the Trustee to take actions
enumerated in this Indenture shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct with respect to such permissive rights.
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 its Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b)
and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6):
(a) "CASH TRANSACTION" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of,
or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the creditor
relationship arising from the making, drawing, negotiating or incurring
of the draft, ▇▇▇▇ of exchange, acceptance or obligation.
Section 7.04. Trustee's Disclaimer. The Trustee (a) makes no
representation as to the validity or adequacy of the Indenture or the Notes, (b)
is not accountable for the Company's use or application of the proceeds from the
Notes and (c) is not responsible for any statement in the Notes other than its
certificate of authentication.
Section 7.05. Notice of Default. If any Default occurs and is
continuing and is known to the Trustee, the Trustee will send notice of the
Default to each Holder within 90 days after it occurs, unless the Default has
been cured; provided that, except in the case of a default in the payment of the
principal of or interest on any Note, the Trustee may withhold the notice if and
so long as the board of directors, the executive committee or a trust committee
of directors of the Trustee
73
in good faith determines that withholding the notice is in the interest of the
Holders. Notice to Holders under this Section will be given in the manner and to
the extent provided in Trust Indenture Act Section 313(c).
Section 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15, beginning with May 15, 2005, the Trustee will mail to each Holder, as
provided in Trust Indenture Act Section 313(c) a brief report dated as of such
May 15, if required by Trust Indenture Act Section 313(a). The Trustee will also
mail to each Holder any report required by Trust Indenture Act Section 313(b).
Section 7.07. Compensation and Indemnity. (a) The Company will pay the
Trustee compensation as agreed upon in writing for its services. The
compensation of the Trustee is not limited by any law on compensation of a
Trustee of an express trust. The Company will reimburse the Trustee upon request
for all reasonable and documented out-of-pocket expenses, disbursements and
advances incurred or made by the Trustee, including the reasonable compensation
and expenses of the Trustee's agents and counsel.
(b) The Company will indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part arising out of or in connection with the
acceptance or administration of the Indenture and its duties under the Indenture
and the Notes, including the reasonable costs and expenses of defending itself
against any claim or liability and of complying with any process served upon it
or any of its officers in connection with the exercise or performance of any of
its powers or duties under the Indenture and the Notes. The Trustee shall
promptly notify the Company of any claim for which it may seek indemnity. The
Company shall defend the claim, and the Trustee shall cooperate in the defense
thereof. The Company shall have no obligation to pay for any settlement of any
such claim without its consent, which consent shall not be unreasonably
withheld.
(c) To secure the Company's payment obligations in this Section,
the Trustee will have a lien prior to the Notes on all money or property held or
collected by the Trustee, in its capacity as Trustee, except money or property
held in trust to pay principal of, and interest on particular Notes.
(d) When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (g) or (h) of Section 6.01 occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration to the extent permitted by law under apply applicable
bankruptcy, reorganization, insolvency or other similar law not or hereinafter
in effect.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
74
Section 7.08. Replacement of Trustee. (a) (i) The Trustee may resign at
any time by written notice to the Company.
(i) The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by written notice to the
Trustee.
(ii) If the Trustee is no longer eligible under Section
7.10 or in the circumstances described in Trust Indenture Act Section
310(b) any Holder that satisfies the requirements of Trust Indenture
Act Section 310(b). may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
(iii) The Company may remove the Trustee if: (A) the
Trustee is no longer eligible under Section 7.10; (B) the Trustee is
adjudged a bankrupt or an insolvent; (C) a receiver or other public
officer takes charge of the Trustee or its property; or (D) the Trustee
becomes incapable of acting.
A resignation or removal of the Trustee and appointment of a successor Trustee
will become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
(b) If the Trustee has been removed by the Holders, Holders of a
majority in principal amount of the Notes may appoint a successor Trustee with
the consent of the Company. Otherwise, if the Trustee resigns or is removed, or
if a vacancy exists in the office of Trustee for any reason, the Company will
promptly appoint a successor Trustee. If the successor Trustee does not deliver
its written acceptance within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) Upon delivery by the successor Trustee of a written acceptance
of its appointment to the retiring Trustee and to the Company, (i) the retiring
Trustee will transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07, (ii) the resignation
or removal of the retiring Trustee will become effective, and (iii) the
successor Trustee will have all the rights, powers and duties of the Trustee
under the Indenture. Upon request of any successor Trustee, the Company will
execute any and all instruments for fully and vesting in and confirming to the
successor Trustee all such rights, powers and trusts. The Company will give
notice of any resignation and any removal of the Trustee and each appointment of
a successor Trustee to all Holders, and include in the notice the name of the
successor Trustee and the address of its Corporate Trust Office.
75
(d) Notwithstanding replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 will continue for the
benefit of the retiring Trustee.
(e) The Trustee agrees to give the notices provided for in, and
otherwise comply with, Trust Indenture Act Section 310(b).
Section 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act will be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee in the
Indenture.
Section 7.10. Eligibility. The Indenture must always have a Trustee
that satisfies the requirements of Trust Indenture Act Section 310(a) and has a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition.
Section 7.11. Money Held in Trust. The Trustee will not be liable for
interest on any money received by it except as it may agree with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law and except for money held in trust under
Article 8.
ARTICLE 8
DEFEASANCE AND DISCHARGE
Section 8.01. Discharge of Company's Obligations. (a) Subject to
paragraph (b), the Company's obligations under the Notes and the Indenture, and
each Guarantor's obligations under its Note Guaranty, will terminate if:
(i) all Notes previously authenticated and delivered
(other than (A) destroyed, lost or stolen Notes that have been replaced
or (B) Notes that are paid pursuant to Section 4.01 or (C) Notes for
whose payment money or U.S. Government Obligations have been held in
trust and then repaid to the Company pursuant to Section 8.05) have
been delivered to the Trustee for cancellation and the Company has paid
all sums payable by it hereunder; or
(ii) (A) the Notes mature within one year, or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption,
76
(B) the Company irrevocably deposits in trust
with the Trustee, as trust funds solely for the benefit of the
Holders, money or U.S. Government Obligations or a combination
thereof sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certificate delivered to the Trustee, without consideration of
any reinvestment, to pay principal of and interest on the
Notes to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder,
(C) no Default has occurred and is continuing on
the date of the deposit,
(D) the deposit will not result in a breach or
violation of, or constitute a default under, the Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound, and
(E) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of the Indenture
have been complied with.
(b) After satisfying the conditions in clause (i), only the
Company's obligations under Section 7.07 will survive. After satisfying the
conditions in clause (ii), only the Company's obligations in Article 2 and
Sections 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06 will survive. In either case, the
Trustee upon request will acknowledge in writing the discharge of the Company's
obligations under the Notes and the Indenture other than the surviving
obligations.
Section 8.02. Legal Defeasance. After the 123rd day following the
deposit referred to in clause (a) below, the Company will be deemed to have paid
and will be discharged from its obligations in respect of the Notes and the
Indenture (other than its obligations in Article 2 and Sections 4.01, 4.02,
7.07, 7.08, 8.05 and 8.06) and each Guarantor's obligations under its Note
Guaranty will terminate; provided the following conditions have been satisfied:
(a) The Company has irrevocably deposited in trust with
the Trustee, as trust funds solely for the benefit of the Holders,
money or U.S. Government Obligations or a combination thereof
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certificate
thereof delivered to the Trustee, without consideration of any
reinvestment, to pay principal of and interest on the Notes to maturity
or redemption, as the case may be, provided that any
77
redemption before maturity has been irrevocably provided for under
arrangements satisfactory to the Trustee.
(b) No Default has occurred and is continuing on the date
of the deposit or occurs at any time during the 123-day period
following the deposit.
(c) The deposit will not result in a breach or violation
of, or constitute a default under, the Indenture or any other agreement
or instrument to which the Company is a party or by which it is bound.
(d) The Company has delivered to the Trustee
(i) either (x) a ruling received from the
Internal Revenue Service to the effect that the Holders will
not recognize income, gain or loss for federal income tax
purposes as a result of the defeasance and will be subject to
federal income tax on the same amount and in the same manner
and at the same times as would otherwise have been the case or
(y) an Opinion of Counsel, based on a change in law after the
date of the Indenture, to the same effect as the ruling
described in clause (x), and
(ii) an Opinion of Counsel to the effect that (x)
the creation of the defeasance trust does not violate the
Investment Company Act of 1940, (y) the Holders have a valid
first priority Note interest in the trust funds (subject to
customary exceptions), and (z) after the passage of 123 days
following the deposit, the trust funds will not be subject to
the effect of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code
or Section 15 of the New York Debtor and Creditor Law.
(e) If the Notes are listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the deposit and defeasance will not cause
the Notes to be delisted.
(f) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
have been complied with.
Prior to the end of the 123-day period, none of the Company's
obligations under the Indenture will be discharged. Thereafter, the Trustee upon
request will acknowledge in writing the discharge of the Company's obligations
under the Notes and the Indenture except for the surviving obligations specified
above.
78
Section 8.03. Covenant Defeasance. After the 123rd day following the
deposit referred to in clause (a), the Company's obligations set forth in
Sections 4.06 through 4.17, clauses (C) and (D) of Section 5.01(a)(iii) and
Section 5.02 and each Guarantor's obligations under its Note Guaranty will
terminate, and clauses (c), (d), (e), (f) and (i) of Section 6.01 will no longer
constitute Events of Default; provided the following conditions have been
satisfied:
(a) The Company has complied with clauses (a), (b), (c),
(d)(ii), (e) and (f) of Section 8.02 and
(b) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Holders will not recognize income,
gain or loss for federal income tax purposes as a result of the
defeasance and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would otherwise have
been the case.
Upon satisfaction of the conditions described above, the Company may
omit to comply with the covenants and clauses described above and shall have no
liability in respect thereof, including by reason of any reference to such
covenants or clauses elsewhere in the Indenture. Except as specifically stated
above, none of the Company's obligations under the Indenture will be discharged.
Section 8.04. Application of Trust Money. Subject to Section 8.05 the
Trustee will hold in trust the money or U.S. Government Obligations deposited
with it pursuant to Section 8.01, 8.02 or 8.03, and apply the deposited money
and the proceeds from deposited U.S. Government Obligations to the payment of
principal of and interest on the Notes in accordance with the Notes and the
Indenture. Such money and U.S. Government Obligations need not be segregated
from other funds except to the extent required by law.
Section 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee will promptly pay to the Company upon request any
excess money held by the Trustee at any time and thereupon be relieved from all
liability with respect to such money. The Trustee will pay to the Company upon
request any money held for payment with respect to the Notes that remains
unclaimed for two years, provided that before making such payment the Trustee
may at the expense of the Company publish once in a newspaper of general
circulation in New York City, or send to each Holder entitled to such money,
notice that the money remains unclaimed and that after a date specified in the
notice (at least 30 days after the date of the publication or notice) any
remaining unclaimed balance of money will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look solely to the
Company for payment, unless applicable law designates another Person, and all
liability of the Trustee with respect to such money will cease.
79
Section 8.06. Reinstatement. If and for so long as the Trustee is
unable to apply any money or U.S. Government Obligations held in trust pursuant
to Section 8.01, 8.02 or 8.03 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under the Indenture and the Notes and the Guarantors' obligations under the
Indenture and the Note Guaranties will be reinstated as though no such deposit
in trust had been made. If the Company makes any payment of principal of or
interest on any Notes because of the reinstatement of its obligations, it will
be subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held in trust.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Amendments without Consent of Holders. (a) The Company
and the Trustee may amend or supplement the Indenture and/or the Notes without
notice to or the consent of any Noteholder
(i) to cure any ambiguity, defect or inconsistency in the
Indenture or the Notes;
(ii) to comply with Article 5
(iii) to comply with any requirements of the Commission in
connection with the qualification of the Indenture under the Trust
Indenture Act;
(iv) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee;
(v) to provide for uncertificated Notes in addition to or
in place of certificated Notes, provided that the uncertified Notes are
issued in registered form for purposes of Section 163(f) of the
Internal Revenue Code of 1986, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the
Internal Revenue Code of 1986;
(vi) to provide for any Guarantee of the Notes, to provide
security for the Notes or to confirm and evidence the release,
termination or discharge of any Guarantee of or Lien securing the Notes
when such release, termination or discharge is permitted by the
Indenture; or
(vii) to conform any provision to the section in the
Offering Circular entitled "Description of the Notes".
80
Section 9.02. Amendments with Consent of Holders. (a) Except as
otherwise provided in Sections 6.02, 6.04, and 6.07 or paragraph (b), the
Company and the Trustee may amend the Indenture and/or the Notes with the
written consent of the Holders of a majority in principal amount of the then
outstanding Notes, and the Holders of a majority in principal amount of the then
outstanding Notes by written notice to the Trustee may waive future compliance
by the Company with any provision of the Indenture or the Notes.
(b) Notwithstanding the provisions of paragraph (a), without the
consent of each Holder affected, an amendment or waiver may not
(i) reduce the principal amount of or change the Stated
Maturity of any installment of principal of any Note,
(ii) reduce the rate of or change the Stated Maturity of
any interest payment on any Note,
(iii) reduce the amount payable upon the redemption of any
Note or change the time of any mandatory redemption or, in respect of
an optional redemption, the times at which any Note may be redeemed or,
once notice of redemption has been given, the time at which it must
thereupon be redeemed,
(iv) after the time an Offer to Purchase is required to
have been made, reduce the purchase amount or purchase price, or extend
the latest expiration date or purchase date thereunder,
(v) make any Note payable in money other than that stated
in the Note,
(vi) impair the right of any Holder of Notes to receive
any principal payment or interest payment on such Holder's Notes, on or
after the Stated Maturity thereof, or to institute suit for the
enforcement of any such payment,
(vii) make any change in the percentage of the principal
amount of the Notes required for amendments or waivers,
(viii) modify or change any provision of the Indenture
affecting the ranking of the Notes or any Note Guaranty in a manner
adverse to the Holders of the Notes, or
(ix) except as provided in Article 10 make any change in
any Note Guaranty that would adversely affect the Noteholders;
81
provided that the provisions of Section 4.12 and Section 4.13 may, except as
provided above, be amended or waived with the consent of Holders holding not
less than 66-2/3% in aggregate principal amount of the Notes.
(c) It is not necessary for Noteholders to approve the particular
form of any proposed amendment, supplement or waiver, but is sufficient if their
consent approves the substance thereof.
(d) An amendment, supplement or waiver under this Section become
effective on receipt by the Trustee of written consents from the Holders of the
requisite percentage in principal amount of the outstanding Notes. After an
amendment, supplement or waiver under this Section becomes effective, the
Company will send to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. The Company will send supplemental
indentures to Holders upon request. Any failure of the Company to send such
notice, or any defect therein, will not, however, in any way impair or affect
the validity of any such supplemental indenture or waiver.
Section 9.03. Effect of Consent. (a) After an amendment, supplement or
waiver becomes effective, it will bind every Holder unless it is of the type
requiring the consent of each Holder affected. If the amendment, supplement or
waiver is of the type requiring the consent of each Holder affected, the
amendment, supplement or waiver will bind each Holder that has consented to it
and every subsequent Holder of a Note that evidences the same debt as the Note
of the consenting Holder.
(b) If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder to deliver it to the Trustee so that
the Trustee may place an appropriate notation of the changed terms on the Note
and return it to the Holder, or exchange it for a new Note that reflects the
changed terms. The Trustee may also place an appropriate notation on any Note
thereafter authenticated. However, the effectiveness of the amendment,
supplement or waiver is not affected by any failure to annotate or exchange
Notes in this fashion.
Section 9.04. Trustee's Rights and Obligations. The Trustee is entitled
to receive, and will be fully protected in relying upon, in addition to the
documents required by Section 11.04, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this
Article is authorized or permitted by the Indenture. If the Trustee has received
such an Opinion of Counsel, it shall sign the amendment, supplement or waiver so
long as the same does not adversely affect the rights of the Trustee. The
Trustee may, but is not obligated to, execute any amendment, supplement or
waiver that affects the Trustee's own rights, duties or immunities under the
Indenture.
82
Section 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
Section 9.06. Payments for Consents. Neither the Company nor any of its
Subsidiaries or Affiliates may, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of the Indenture or the Notes unless such consideration is offered
to be paid or agreed to be paid to all Holders of the Notes that consent, waive
or agree to amend such term or provision within the time period set forth in the
solicitation documents relating to the consent, waiver or amendment.
ARTICLE 10
GUARANTIES
Section 10.01. The Guaranties. Subject to the provisions of this
Article, each Guarantor hereby irrevocably and unconditionally guarantees,
jointly and severally, the full and punctual payment (whether at Stated
Maturity, upon redemption, purchase pursuant to an Offer to Purchase or
acceleration, or otherwise) of the principal of, premium, if any, and interest
on, and all other amounts payable under, each Note, and the full and punctual
payment of all other amounts payable by the Company under the Indenture. Upon
failure by the Company to pay punctually any such amount, each Guarantor shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in the Indenture.
Section 10.02. Guaranty Unconditional. The obligations of each
Guarantor hereunder are unconditional and absolute and, without limiting the
generality of the foregoing, will not be released, discharged or otherwise
affected by
(a) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Company under the
Indenture or any Note, by operation of law or otherwise;
(b) any modification or amendment of or supplement to the
Indenture or any Note;
(c) any change in the corporate existence, structure or
ownership of the Company, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Company or its assets or any
resulting release or discharge of any obligation of the Company
contained in the Indenture or any Note;
83
(d) the existence of any claim, set-off or other rights
which the Guarantor may have at any time against the Company, the
Trustee or any other Person, whether in connection with the Indenture
or any unrelated transactions, provided that nothing herein prevents
the assertion of any such claim by separate suit or compulsory
counterclaim;
(e) any invalidity or unenforceability relating to or
against the Company for any reason of the Indenture or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Company of the principal of or interest on any Note or
any other amount payable by the Company under the Indenture; or
(f) any other act or omission to act or delay of any kind
by the Company, the Trustee or any other Person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of or defense to
such Guarantor's obligations hereunder.
Section 10.03. Discharge; Reinstatement. Each Guarantor's obligations
hereunder will remain in full force and effect until the principal of, premium,
if any, and interest on the Notes and all other amounts payable by the Company
under the Indenture have been paid in full. If at any time any payment of the
principal of, premium, if any, or interest on any Note or any other amount
payable by the Company under the Indenture is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, each Guarantor's obligations hereunder with respect to
such payment will be reinstated as though such payment had been due but not made
at such time.
Section 10.04. Waiver by the Guarantors. Each Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Company or any other Person.
Section 10.05. Subrogation and Contribution. Upon making any payment
with respect to any obligation of the Company under this Article, the Guarantor
making such payment will be subrogated to the rights of the payee against the
Company with respect to such obligation, provided that the Guarantor may not
enforce either any right of subrogation, or any right to receive payment in the
nature of contribution, or otherwise, from any other Guarantor, with respect to
such payment so long as any amount payable by the Company hereunder, or under
the Notes remains unpaid.
Section 10.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Company under the Indenture or the Notes
84
is stayed upon the insolvency, bankruptcy or reorganization of the Company, all
such amounts otherwise subject to acceleration under the terms of the Indenture
are nonetheless payable by the Guarantors hereunder forthwith on demand by the
Trustee or the Holders.
Section 10.07. Limitation on Amount of Guaranty. Notwithstanding
anything to the contrary in this Article, each Guarantor, and by its acceptance
of Notes, each Holder, hereby confirms that it is the intention of all such
parties that the Note Guaranty of such Guarantor not constitute a fraudulent
conveyance under applicable fraudulent conveyance provisions of the United
States Bankruptcy Code or any comparable provision of state law. To effectuate
that intention, the Trustee, the Holders and the Guarantors hereby irrevocably
agree that the obligations of each Guarantor under its Note Guaranty are limited
to the maximum amount that would not render the Guarantor's obligations subject
to avoidance under applicable fraudulent conveyance provisions of the United
States Bankruptcy Code or any comparable provision of state law.
Section 10.08. Execution and Delivery of Guaranty. The execution by
each Guarantor of the Indenture (or a supplemental indenture substantially in
the form of Exhibit B) evidences the Note Guaranty of such Guarantor, whether or
not the person signing as an officer of the Guarantor still holds that office at
the time of authentication of any Note. The delivery of any Note by the Trustee
after authentication constitutes due delivery of the Note Guaranty set forth in
the Indenture on behalf of each Guarantor.
Section 10.09. Release of Guaranty. The Note Guaranty of a Guarantor
will terminate upon
(a) a sale or other disposition (including by way of
consolidation or merger) of the Guarantor or the sale or disposition of
all or substantially all the assets of the Guarantor (in each case
other than to the Company or a Restricted Subsidiary) otherwise
permitted by the Indenture,
(b) the designation in accordance with the Indenture of
the Guarantor as an Unrestricted Subsidiary, or
(c) defeasance or discharge of the Notes, as provided in
Article 8.
Upon delivery by the Company to the Trustee of an Officers' Certificate
and an Opinion of Counsel to the foregoing effect, the Trustee will execute any
documents reasonably required in order to evidence the release of the Guarantor
from its obligations under its Note Guaranty.
85
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act of 1939. The Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
Section 11.02. Noteholder Communications; Noteholder Actions. (a) The
rights of Holders to communicate with other Holders with respect to the
Indenture or the Notes are as provided by the Trust Indenture Act, and the
Company and the Trustee shall comply with the requirements of Trust Indenture
Act Section 312(a). Neither the Company nor the Trustee will be held accountable
by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
(b) (i) Any request, demand, authorization, direction, notice,
consent to amendment, supplement or waiver or other action provided by this
Indenture to be given or taken by a Holder (an "ACT") may be evidenced by an
instrument signed by the Holder delivered to the Trustee. The fact and date of
the execution of the instrument, or the authority of the person executing it,
may be proved in any manner that the Trustee deems sufficient.
(ii) The Trustee may make reasonable rules for action by
or at a meeting of Holders, which will be binding on all the Holders.
(c) Any act by the Holder of any Note binds that Holder and every
subsequent Holder of a Note that evidences the same debt as the Note of the
acting Holder, even if no notation thereof appears on the Note. Subject to
paragraph (d), a Holder may revoke an act as to its Notes, but only if the
Trustee receives the notice of revocation before the date the amendment or
waiver or other consequence of the act becomes effective.
(d) The Company may, but is not obligated to, fix a record date
(which need not be within the time limits otherwise prescribed by Trust
Indenture Act Section 316(c)) for the purpose of determining the Holders
entitled to act with respect to any amendment or waiver or in any other regard,
except that during the continuance of an Event of Default, only the Trustee may
set a record date as to notices of default, any declaration or acceleration or
any other remedies or other consequences of the Event of Default. If a record
date is fixed, those Persons that were Holders at such record date and only
those Persons will be entitled to act, or to revoke any previous act, whether or
not those Persons continue to be Holders after the record date. No act will be
valid or effective for more than 90 days after the record date.
86
Section 11.03. Notices. (a) Any notice or communication to the Company
will be deemed given if in writing (i) when delivered in person or (ii) five
days after mailing when mailed by first class mail, or (iii) when sent by
facsimile transmission, with transmission confirmed. Notices or communications
to a Guarantor will be deemed given if given to the Company. Any notice to the
Trustee will be effective only upon receipt. In each case the notice or
communication should be addressed as follows:
if to the Company:
Century Aluminum Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
if to the Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Capital Markets
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) Except as otherwise expressly provided with respect to
published notices, any notice or communication to a Holder will be deemed given
when mailed to the Holder at its address as it appears on the Register by first
class mail or, as to any Global Note registered in the name of DTC or its
nominee, as agreed by the Company, the Trustee and DTC. Copies of any notice or
communication to a Holder, if given by the Company, will be mailed to the
Trustee at the same time. Defect in mailing a notice or communication to any
particular Holder will not affect its sufficiency with respect to other Holders.
(c) Where the Indenture provides for notice, the notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and the waiver will be the equivalent of the notice. Waivers
of notice by Holders must be filed with the Trustee, but such filing is not a
condition precedent to the validity of any action taken in reliance upon such
waivers.
87
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 the Indenture, the Company will furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in the
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that all such
conditions precedent have been complied with.
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 the Indenture must include (subject to customary language and
exceptions in the case of an Opinion of Counsel):
(a) a statement that each person signing the certificate
or opinion has read the covenant or condition and the related
definitions;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in the certificate or opinion is based;
(c) a statement that, in the opinion of each such person,
that person has made such examination or investigation as is necessary
to enable the person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied with,
provided that an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials with respect to matters
of fact.
Section 11.06. Payment Date Other than a Business Day. If any payment
with respect to a payment of any principal of, premium, if any, or interest on
any Note (including any payment to be made on any date fixed for redemption or
purchase of any Note) is due on a day which is not a Business Day, then the
payment need not be made on such date, but may be made on the next Business Day
with the same force and effect as if made on such date, and no interest will
accrue with respect to such payment for the intervening period.
Section 11.07. Governing Law. The Indenture, including any Note
Guaranties, and the Notes shall be governed by, and construed in accordance
with, the laws of the State of New York.
88
Section 11.08. No Adverse Interpretation of Other Agreements. The
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company, and no such indenture
or loan or debt agreement may be used to interpret the Indenture.
Section 11.09. Successors. All agreements of the Company or any
Guarantor in the Indenture and the Notes will bind its successors. All
agreements of the Trustee in the Indenture will bind its successor.
Section 11.10. Duplicate Originals. The parties may sign any number of
copies of the Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 11.11. Separability. In case any provision in the Indenture or
in the Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
Section 11.12. Table of Contents and Headings. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of the Indenture
have been inserted for convenience of reference only, are not to be considered a
part of the Indenture and in no way modify or restrict any of the terms and
provisions of the Indenture.
Section 11.13. No Liability of Directors, Officers, Employees,
Incorporators and Stockholders. No director, officer, employee, incorporator,
member or stockholder of the Company or any Guarantor, as such, will have any
liability for any obligations of the Company or such Guarantor under the Notes,
any Note Guaranty, or the Indenture or the Registration Rights Agreement or for
any claim based on, in respect of, or by reason of, such obligations. Each
Holder of 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.
89
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be
duly executed as of the date first written above.
CENTURY ALUMINUM COMPANY, as
Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY, as
Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signer
CENTURY ALUMINUM OF WEST VIRGINIA,
INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
BERKELEY ALUMINUM, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
VIRGIN ISLANDS ALUMINA
CORPORATION LLC, as a Guarantor
90
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
CENTURY KENTUCKY, INC., as a
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
METALSCO, LTD., as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
SKYLINER, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
NSA, LTD., as a Guarantor
By: Metalsco, Ltd., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇▇▇ ALUMINUM LLC, as a
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
91
CENTURY LOUISIANA, INC., as a
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
CENTURY ALUMINUM HOLDINGS, INC., as a
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
92
EXHIBIT A
[FACE OF NOTE]
CENTURY ALUMINUM COMPANY
7 1/2% Senior Notes Due 2014
[CUSIP] [CINS] _______________
No. $_______________
Century Aluminum Company, a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to ____________________, or its registered
assigns, the principal sum of ____________ DOLLARS ($______) [or such other
amount as indicated on the Schedule of Exchange of Notes attached hereto](1) on
August 15, 2014.
[Initial](2) Interest Rate: 7 1/2 % per annum.
Interest Payment Dates: February 15 and August 15 commencing, February
15, 2005.
Regular Record Dates: February 1 and August 1.
Reference is hereby make to the further provisions of this Note set
forth on the reverse hereof, which will for all purposes have the same effect as
if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Date:
CENTURY ALUMINUM COMPANY
By: ____________________________________
Name:
Title:
-----------------------
(1) For Global Notes.
(2) For Initial Notes or Initial Additional Notes only.
A-1
(Form of Trustee's Certificate of Authentication)
This is one of the 7 1/2% Senior Notes Due 2014 described in the
Indenture referred to in this Note.
WILMINGTON TRUST COMPANY, as
Trustee
By:________________________________
Authorized Signatory
A-2
[REVERSE SIDE OF NOTE]
CENTURY ALUMINUM COMPANY
7 1/2% Senior Notes Due 2014
1. Principal and Interest.
The Company promises to pay the principal of this Note on August 15,
2014.
The Company promises to pay interest on the principal amount of this
Note on each interest payment date, as set forth on the face of this Note, at
the rate of 7 1/2% per annum [(subject to adjustment as provided below)].(1)
Interest will be payable semiannually (to the holders of record of the
Notes at the close of business on the February 1 or August 1 immediately
preceding the interest payment date) on each interest payment date, commencing,
February 15, 2005.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement, dated August 26, 2004, among the Company, the
Guarantors party thereto and the Initial Purchasers named therein (the
"REGISTRATION RIGHTS AGREEMENT"). In the event that the Exchange Offer (as
defined in the Registration Rights Agreement) is not consummated or the Shelf
Registration Statement (as defined in the Registration Rights Agreement) is not
declared effective on or prior to the date that is 210 days after the Issue Date
(the "EFFECTIVENESS DEADLINE"), the interest rate on this Note will increase by
a rate of 0.50% per annum until the Exchange Offer is consummated or the Shelf
Registration Statement is declared effective by the Commission. The interest
rate on this Note will not increase by more than 0.50% per annum notwithstanding
the Company's failure to meet more than one of these requirements.](2)
Interest on this Note will accrue from the most recent date to which
interest has been paid on this Note [or the Note surrendered in exchange for
this Note](3) (or, if there is no existing default in the payment of interest
and if this Note is authenticated between a regular record date and the next
interest payment date, from such interest payment date) or, if no interest has
been paid, from the Issue
-----------------------
(1) Include only for Initial Note or Initial Additional Note.
(2) Include only for Initial Note; modify as necessary for Initial Additional
Note.
(3) Include only for Exchange Note.
A-3
Date. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company will pay interest on overdue principal, premium, if any,
and interest at a rate per annum that is 2% in excess of 7 1/2%. Interest not
paid when due and any interest on principal, premium or interest not paid when
due will be paid to the Persons that are Holders on a special record date, which
will be the 15th day preceding the date fixed by the Company for the payment of
such interest, whether or not such day is a Business Day. At least 15 days
before a special record date, the Company will send to each Holder and to the
Trustee a notice that sets forth the special record date, the payment date and
the amount of interest to be paid.
2. Indentures; Note Guaranty.
This is one of the Notes issued under an Indenture dated as of August
26, 2004 (as amended from time to time, the "INDENTURE"), among the Company, the
Guarantors party thereto and Wilmington Trust Company, as Trustee. Capitalized
terms used herein are used as defined in the Indenture unless otherwise
indicated. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the Trust Indenture Act for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency between the terms
of this Note and the terms of the Indenture, the terms of the Indenture will
control.
The Notes are general senior unsecured obligations of the Company. The
Indenture limits the original aggregate principal amount of the Notes to
$250,000,000 but Additional Notes may be issued pursuant to the Indenture, and
the originally issued Notes and all such Additional Notes vote will together for
all purposes as a single class. This Note is guarantied, as set forth in the
Indenture.
3. Redemption and Repurchase; Discharge Prior to Redemption or Maturity.
This Note is subject to optional redemption, and may be the subject of
an Offer to Purchase, as further described in the Indenture. There is no sinking
fund or mandatory redemption applicable to this Note.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Notes to redemption or maturity, the Company
may in certain circumstances be discharged from the Indenture and the Notes or
may be discharged from certain of its obligations under certain provisions of
the Indenture.
A-4
4. Registered Form; Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 principal amount and any multiple of $1,000 in excess thereof. A Holder
may register the transfer or exchange of Notes in accordance with the Indenture.
The Trustee may require a Holder to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. Pursuant to the Indenture, there are certain periods during which
the Trustee will not be required to issue, register the transfer of or exchange
any Note or certain portions of a Note.
5. Defaults and Remedies.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Notes may declare all the Notes to be due and payable. If a bankruptcy
default with respect to the Company occurs and is continuing, the Notes
automatically become due and payable. Holders may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the Notes then
outstanding may direct the Trustee in its exercise of remedies.
6. Amendment and Waiver.
Subject to certain exceptions, the Indenture and the Notes may be
amended, or default may be waived, with the consent of the Holders of a majority
in principal amount of the outstanding Notes. Without notice to or the consent
of any Holder, the Company and the Trustee may amend or supplement the Indenture
and the Notes to, among other things, cure any ambiguity, defect or
inconsistency.
7. Authentication.
This Note is not valid until the Trustee (or Authenticating Agent)
signs the certificate of authentication on the other side of this Note.
8. 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).
The Company will furnish a copy of the Indenture to any Holder upon
written request and without charge.
A-5
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________________________________________________________
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________________
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
A-6
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES BEARING A RESTRICTED
LEGEND]
In connection with any transfer of this Note occurring prior to
______________, the undersigned confirms that such transfer is made without
utilizing any general solicitation or general advertising and further as
follows:
Check One
9 (1) This Note is being transferred to a "qualified institutional buyer"
in compliance with Rule 144A under the Securities Act of 1933, as amended and
certification in the form of Exhibit F to the Indenture is being furnished
herewith.
9 (2) This Note is being transferred to a Non-U.S. Person in compliance
with the exemption from registration under the Securities Act of 1933, as
amended, provided by Regulation S thereunder, and certification in the form of
Exhibit E to the Indenture is being furnished herewith.
or
9 (3) This Note is being transferred other than in accordance with (1) or
(2) above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee is not obligated
to register this Note in the name of any Person other than the Holder hereof
unless and until the conditions to any such transfer of registration set forth
herein and in the Indenture have been satisfied.
Date:____________________
__________________________
Seller
By________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or
any change whatsoever.
Signature Guarantee:(4) _______________________________
By_____________________________________
To be executed by an executive officer
-----------------------
(4) Signatures must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Note Transfer Agent Medallion Program ("STAMP") or such
other "SIGNATURE GUARANTEE PROGRAM" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have all of this Note purchased by the Company pursuant
to Section 4.12 or Section 4.13 of the Indenture, check the box: 9
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.12 or Section 4.13 of the Indenture, state the amount (in
original principal amount) below:
$_____________________.
Date:____________
Your Signature:__________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:(1)_____________________________
-----------------------
(1) Signatures must be guaranteed by an "ELIGIBLE GUARANTOR INSTITUTION" meeting
the requirements of the Trustee, which requirements include membership or
participation in the Note Transfer Agent Medallion Program ("STAMP") or such
other "SIGNATURE GUARANTEE PROGRAM" as may be determined by the Trustee in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-8
SCHEDULE OF EXCHANGES OF NOTES(1)
The following exchanges of a part of this Global Note for Physical
Notes or a part of another Global Note have been made:
AMOUNT OF AMOUNT OF PRINCIPAL AMOUNT
DECREASE IN INCREASE IN OF THIS GLOBAL
PRINCIPAL AMOUNT PRINCIPAL AMOUNT NOTE FOLLOWING SIGNATURE OF
OF THIS GLOBAL OF THIS GLOBAL SUCH DECREASE (OR AUTHORIZED
DATE OF EXCHANGE NOTE NOTE INCREASE) OFFICER OF TRUSTEE
---------------- ---------------- ---------------- ----------------- ------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
-------------
(1) For Global Notes
A-9
EXHIBIT B
SUPPLEMENTAL INDENTURE
dated as of __________, ____
among
CENTURY ALUMINUM COMPANY,
The Guarantor(s) Party Hereto
and
WILMINGTON TRUST COMPANY,
as Trustee
------------------------
7 1/2% SENIOR NOTES DUE 2014
B-1
THIS SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), entered
into as of __________, ____, among Century Aluminum Company, a Delaware
corporation (the "COMPANY"), the Guarantors party hereto, [insert each Guarantor
executing this Supplemental Indenture and its jurisdiction of incorporation]
(each an "UNDERSIGNED") and Wilmington Trust Company, as trustee (the
"TRUSTEE").
RECITALS
WHEREAS, the Company, the Guarantors party thereto and the Trustee
entered into the Indenture, dated as of August 26, 2004 (the "INDENTURE"),
relating to the Company's 7 1/2% Senior Notes due 2014 (the "NOTES");
WHEREAS, as a condition to the Trustee entering into the Indenture and
the purchase of the Notes by the Holders, the Company agreed pursuant to the
Indenture to cause any newly acquired or created Domestic Restricted
Subsidiaries (other than Foreign-Owned Parent Holding Companies) to provide
Guaranties.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and intending to be legally bound, the parties to this
Supplemental Indenture hereby agree as follows:
SECTION 1. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
SECTION 2. Each Undersigned, by its execution of this Supplemental
Indenture, agrees to be a Guarantor under the Indenture and to be bound by the
terms of the Indenture applicable to Guarantors, including, but not limited to,
Article 10 thereof.
SECTION 3. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 4. This Supplemental Indenture may be signed in various
counterparts which together will constitute one and the same instrument.
SECTION 5. This Supplemental Indenture is an amendment supplemental to
the Indenture and the Indenture and this Supplemental Indenture will henceforth
be read together.
SECTION 6. The Trustee makes no representation as to the validity or
adequacy of this Supplemental Indenture or the recitals contained herein.
B-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
CENTURY ALUMINUM COMPANY, as Issuer
By: _____________________________________
Name:
Title:
[GUARANTOR]
By: _____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as Trustee
By: _____________________________________
Name:
Title:
B-3
EXHIBIT C
RESTRICTED LEGEND
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER
(1) REPRESENTS THAT
(A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
"QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION
WITH RESPECT TO EACH SUCH ACCOUNT,
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF RULE 501(a) (1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(C) IT IS NOT A U.S. PERSON (WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT) AND
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN,
EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND ONLY
(A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT,
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT,
(D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 OF REGULATION S UNDER THE SECURITIES ACT,
C-1
(E) IN A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000, TO
AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
DELIVERS TO THE TRUSTEE A DULY COMPLETED AND SIGNED CERTIFICATE (THE
FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE) RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE, OR
(F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C)
ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF
WHICH MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) OR (F) ABOVE, THE
COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE
AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
C-2
EXHIBIT D
DTC LEGEND
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.
D-1
EXHIBIT E
Regulation S Certificate
_________, ____
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Capital Markets
Re: Century Aluminum Company
7 1/2% Senior Notes due 2014 (the "NOTES") Issued under the
Indenture (the "INDENTURE") dated as of August 26, 2004
relating to the Notes
Dear Sirs:
Terms are used in this Certificate as used in Regulation S ("Regulation
S") under the Securities Act of 1933, as amended (the "Securities Act"), except
as otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
[ ] A. This Certificate relates to our proposed transfer of
$____ principal amount of Notes issued under the
Indenture. We hereby certify as follows:
1. The offer and sale of the Notes was not and
will not be made to a person in the United
States (unless such person is excluded from
the definition of "U.S. person" pursuant to
Rule 902(k)(2)(vi) or the account held by it
for which it is acting is excluded from the
definition of "U.S. person" pursuant to Rule
902(k)(2)(i) under the circumstances
described in Rule 902(g)(3)) and such offer
and sale was not and will not be
specifically targeted at an identifiable
group of U.S. citizens abroad.
2. Unless the circumstances described in the
parenthetical in paragraph 1 above are
applicable, either (a) at the time the buy
order was originated, the buyer was outside
the United States or we and any person
acting on our behalf reasonably believed
that the buyer was outside the United States
or (b) the transaction was executed in, on
or through the facilities of a designated
offshore securities market, and
E-1
neither we nor any person acting on our
behalf knows that the transaction was
pre-arranged with a buyer in the United
States.
3. Neither we, any of our affiliates, nor any
person acting on our or their behalf has
made any directed selling efforts in the
United States with respect to the Notes.
4. The proposed transfer of Notes is not part
of a plan or scheme to evade the
registration requirements of the Securities
Act.
5. If we are a dealer or a person receiving a
selling concession, fee or other
remuneration in respect of the Notes, and
the proposed transfer takes place during the
Restricted Period (as defined in the
Indenture), or we are an officer or director
of the Company or an Initial Purchaser (as
defined in the Indenture), we certify that
the proposed transfer is being made in
accordance with the provisions of Rule
904(b) of Regulation S.
[ ] B. This Certificate relates to our proposed exchange of
$____ principal amount of Notes issued under the
Indenture for an equal principal amount of Notes to
be held by us. We hereby certify as follows:
1. At the time the offer and sale of the Notes
was made to us, either (i) we were not in
the United States or (ii) we were excluded
from the definition of "U.S. person"
pursuant to Rule 902(k)(2)(vi) or the
account held by us for which we were acting
was excluded from the definition of "U.S.
person" pursuant to Rule 902(k)(2)(i) under
the circumstances described in Rule
902(g)(3); and we were not a member of an
identifiable group of U.S. citizens abroad.
2. Unless the circumstances described in
paragraph 1(ii) above are applicable, either
(a) at the time our buy order was
originated, we were outside the United
States or (b) the transaction was executed
in, on or through the facilities of a
designated offshore securities market and we
did not pre-arrange the transaction in the
United States.
E-2
3. The proposed exchange of Notes is not part
of a plan or scheme to evade the
registration requirements of the Securities
Act.
E-3
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF SELLER (FOR
TRANSFERS) OR OWNER (FOR
EXCHANGES)]
By:
Name:
Title:
Address:
Date: ________________
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
_________, ____
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Capital Markets
Re: Century Aluminum Company
7 1/2% Senior Notes due 2014 (the "NOTES")
Issued under the Indenture (the "INDENTURE") dated
as of August 26, 2004 relating to the Notes
Dear Ladies and Gentlemen:
TO BE COMPLETED BY PURCHASER IF (1) ABOVE IS CHECKED.
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $____ principal amount of
Notes issued under the Indenture.
[ ] B. Our proposed exchange of $____ principal amount of
Notes issued under the Indenture for an equal
principal amount of Notes to be held by us.
We and, if applicable, each account for which we are acting, are a
qualified institutional buyer within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"). If we are
acting on behalf of an account, we exercise sole investment discretion with
respect to such account. We are aware that the transfer of Notes to us, or such
exchange, as applicable, is being made in reliance upon the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to
the date of this Certificate we have received such information regarding the
Company as we have requested pursuant to Rule 144A(d)(4) or have determined not
to request such information.
F-1
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER (FOR
TRANSFERS) OR OWNER (FOR
EXCHANGES)]
By:
Name:
Title:
Address:
Date: ________________
F-2
EXHIBIT G
Institutional Accredited Investor Certificate
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Capital Markets
Re: Century Aluminum Company
7 1/2% Senior Notes due 2014 (the "NOTES")
Issued under the Indenture (the "INDENTURE") dated
as of August 26, 2004 relating to the Notes
Dear Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $____ principal amount of
Notes issued under the Indenture.
[ ] B. Our proposed exchange of $____ principal amount of
Notes issued under the Indenture for an equal
principal amount of Notes to be held by us.
We hereby confirm that:
1. We are an institutional "accredited
investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended (the
"Securities Act") (an "Institutional
Accredited Investor").
2. Any acquisition of Notes by us will be for
our own account or for the account of one or
more other Institutional Accredited
Investors as to which we exercise sole
investment discretion.
3. We have such knowledge and experience in
financial and business matters that we are
capable of evaluating the merits and risks
of an investment in the Notes and we and any
accounts for which we are acting are able to
bear the
G-1
economic risks of and an entire loss of our
or their investment in the Notes.
4. We are not acquiring the Notes with a view
to any distribution thereof in a transaction
that would violate the Securities Act or the
securities laws of any State of the United
States or any other applicable jurisdiction;
provided that the disposition of our
property and the property of any accounts
for which we are acting as fiduciary will
remain at all times within our and their
control.
5. We acknowledge that the Notes have not been
registered under the Securities Act and that
the Notes may not be offered or sold within
the United States or to or for the benefit
of U.S. persons except as set forth below.
6. The principal amount of Notes to which this
Certificate relates is at least equal to
$100,000.
We agree for the benefit of the Company, on our own behalf and on
behalf of each account for which we are acting, that such Notes may be offered,
sold, pledged or otherwise transferred only in accordance with the Securities
Act and any applicable securities laws of any State of the United States and
only (a) to the Company, (b) pursuant to a registration statement which has
become effective under the Securities Act, (c) to a qualified institutional
buyer in compliance with Rule 144A under the Securities Act, (d) in an offshore
transaction in compliance with Rule 904 of Regulation S under the Securities
Act, (e) in a principal amount of not less than $100,000, to an Institutional
Accredited Investor that, prior to such transfer, delivers to the Trustee a duly
completed and signed certificate (the form of which may be obtained from the
Trustee) relating to the restrictions on transfer of the Notes or (f) pursuant
to an exemption from registration provided by Rule 144 under the Securities Act
or any other available exemption from the registration requirements of the
Securities Act.
Prior to the registration of any transfer in accordance with (c) or (d)
above, we acknowledge that a duly completed and signed certificate (the form of
which may be obtained from the Trustee) must be delivered to the Trustee. Prior
to the registration of any transfer in accordance with (e) or (f) above, we
acknowledge that the Company reserves the right to require the delivery of such
legal opinions, certifications or other evidence as may reasonably be required
in order to determine that the proposed transfer is being made in compliance
with the Securities Act and applicable state securities laws. We acknowledge
that no representation is made as to the availability of any Rule 144 exemption
from the registration requirements of the Securities Act.
G-2
We understand that the Trustee will not be required to accept for
registration of transfer any Notes acquired by us, except upon presentation of
evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that the
Notes acquired by us will be in the form of definitive physical certificates and
that such certificates will bear a legend reflecting the substance of the
preceding paragraph. We further agree to provide to any person acquiring any of
the Notes from us a notice advising such person that resales of the Notes are
restricted as stated herein and that certificates representing the Notes will
bear a legend to that effect.
We agree to notify you promptly in writing if any of our
acknowledgments, representations or agreements herein ceases to be accurate and
complete.
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any account for which we are acting.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[NAME OF PURCHASER (FOR
TRANSFERS) OR OWNER (FOR
EXCHANGES)]
By:
Name:
Title:
Address:
Date: ________________
G-3
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
By: ___________________________________
Date:__________________________________
Taxpayer ID number:____________________
G-4