SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
____________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) May 10, 1996
Moog Inc.
(Exact Name of Registrant as Specified in Charter)
New York 1-5129 16-0757636
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
East Aurora, NY 14052
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (716) 652-2000
NONE
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events.
On May 10, 1996, Moog Inc. issued the attached press
release.
Item 7. Exhibits.
(i) Press release.
(ii) Form of Placement Agreement.
(iii) Form of Registration Rights Agreement.
(iv) Form of Indenture.
(v) Amendment No. 3 to Bank Credit Facility.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
MOOG INC.
MOOG INC.
(Registrant)
Date: May 13, 1996 By: /S/WILLIAM P. BURKE
William P. Burke
Treasurer
<PAGE>
EXHIBIT (i)
MOOG SELLS $120 MLN OF SENIOR SUBORDINATED NOTES
Moog Inc. (AMEX: MOG.A and MOG.B) announced today that
it has sold $120 million of 10% Senior Subordinated Notes due
May 1, 2006. The notes are redeemable at the option of the
Company, in whole or in part, at any time on or after May 1,
2001, at 105% of their principal amount, plus accrued interest,
declining ratably to 100% of their principal amount, plus accrued
interest, on or after May 1, 2003.
Moog will use the net proceeds from the sale of the
securities to repay revolver borrowings of approximately
$68 million, to prepay all $16.4 million of the Company's
outstanding 10.25% Senior Notes due 2001, and to repurchase
714,600 Class A common shares from the Seneca Foods Corporation
at $18.00 per share. In an earlier transaction that closed on
April 26, 1996, Moog redeemed $17.9 million of 9-7/8% Convertible
Subordinated Debentures due 2006.
The offering of Notes was made under Rule 144A and
Regulation S under the Securities Act of 1933. Accordingly, the
Notes have not been registered under the Securities Act of 1933
and may not be offered or sold in the United States absent
registration or an applicable exemption from registration
requirements. Moog has entered into an agreement to exchange the
notes for new notes with substantially identical terms that will
be registered under the Securities Act by November 14, 1996. The
exchange will be made only be means of a prospectus.
Moog, Inc. is a worldwide manufacturer of high
performance controls used in commercial, industrial, aerospace
and defense application.
<PAGE>
EXHIBIT (ii)
MOOG INC.
AMENDED AND RESTATED
PLACEMENT AGREEMENT
Dated May 7, 1996
Amended and
Restated May 9, 1996
_________________
_________________
_________________
Dear Sirs:
Moog Inc., a New York corporation (the "Company"),
proposes to issue and sell to you (the "Placement Agent")
$100,000,000 principal amount of its 10% Senior Subordinated
Notes due 2006 (the "Firm Notes") to be issued pursuant to the
provisions of an Indenture dated as of May 10, 1996 (the
"Indenture") between the Company and Fleet National Bank, as
Trustee (the "Trustee").
The Company also proposes, subject to the terms and
conditions stated herein, to issue and sell to you not more than
an additional $20,000,000 principal amount of its 10% Senior
Subordinated Notes due 2006 (the "Additional Notes"), if and to
the extent that you, as Placement Agent, shall have determined to
exercise the right to purchase such Additional Notes granted to
you in Section 3 hereof. The Firm Notes and the Additional Notes
are hereinafter collectively referred to as the "Notes".
The Notes will be offered without being registered
under the Securities Act of 1933, as amended (the "Securities
Act"), to qualified institutional buyers in compliance with the
exemption from registration provided by Rule 144A under the
Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act ("Regulation S") and to
institutional accredited investors (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) that deliver a letter
in the form annexed to the Final Memorandum (as defined below).
The Placement Agent and its direct and indirect
transferees will be entitled to the benefits of a Registration
Rights Agreement, to be dated the Closing Date (as defined below)
and to be substantially in the form attached hereto as Exhibit A
(the "Registration Rights Agreement"), pursuant to which the
Company will file a registration statement (the "Registration
Statement") with the Securities and Exchange Commission (the
"Commission") registering the Notes or the Exchange Notes (as
defined in the Registration Rights Agreement) under the
Securities Act.
In connection with the sale of the Notes, the Company
has prepared a preliminary private placement memorandum (the
"Preliminary Memorandum") and will prepare a final private
placement memorandum (the "Final Memorandum") setting forth or
including a description of the terms of the Notes, the terms of
<PAGE>
the offering and a description of the Company and its business.
In addition, the Company has prepared Supplement No.1 to Offering
Memorandum dated May 9, 1996 (the "Supplement"), which
supplements the information provided in the Final Memorandum (the
Final Memorandum, as so supplemented, being referred to herein as
the "Supplemented Memorandum" and, with the Preliminary
Memorandum and Final Memorandum, each a "Memorandum").
Additionally, in connection with the sale of the Notes,
the Company (i) has called for the redemption (the "Redemption")
of the Company's 9 7/8% Convertible Subordinated Debentures due
2006, (ii) has agreed to prepay out of the proceeds of the sale
of the Notes the Company's 10.25% Senior Notes due 1999 (the
"Senior Note Prepayment"), (iii) has agreed to purchase 714,600
shares of the Company's Class A Common Stock from Seneca Foods
Corporation (the "Stock Repurchase") and (iv) has entered into an
amendment (the "Amendment to the Bank Credit Facility" and,
together with the Redemption, the Senior Note Prepayment and the
Stock Repurchase, collectively, the "Recapitalization") of the
Company's Revolving and Term Loan Agreement dated June 15, 1994,
as amended, among the banks identified in Exhibit A thereto,
Marine Midland Bank, as agent, and the Company (the "Bank Credit
Agreement").
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, you that as of the
date hereof:
(a) The Final or Supplemented Memorandum, as the case
may be, in the form used by the Placement Agent to confirm sales
and on each of the Closing Date and Option Closing Date (as
defined herein), will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the
representations and warranties set forth in this Section 1(a) do
not apply to statements or omissions in any Memorandum based upon
information relating to the Placement Agent furnished to the
Company in writing by the Placement Agent expressly for use
therein.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of New York, has the corporate power and authority to own
its property and to conduct its business as described in each
Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(c) The only subsidiaries of the Company (either
direct or indirect) are listed on Schedule I attached hereto
(each individually, a "Subsidiary" and collectively, the
"Subsidiaries"). All of the issued and outstanding shares of
<PAGE>
capital stock of each Subsidiary have been duly authorized and
validly issued or created and are fully paid and non-assessable
and, other than as set forth on Schedule 1, are owned by the
Company, directly or through one or more Subsidiaries, free and
clear of any pledge, lien, encumbrance, security interest,
preemptive right or other claim, except stock pledged to secure
the Company's obligations under the Bank Credit Facility and the
10-1/4% Note. Except as set forth in the Company's most recent
proxy statement and in the Supplemented Memorandum and except as
provided herein, there are no outstanding rights, subscriptions,
warrants, calls, options or other agreements of any kind to which
the Company is a party with respect to the capital stock of any
Subsidiary. Each Subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as
described in each Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and the
Subsidiaries, taken as a whole.
(d) This Agreement has been duly authorized, executed
and delivered by the Company.
(e) The Registration Rights Agreement has been duly
authorized, and when executed and delivered by the Company, will
be a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
transfer or similar laws affecting creditors' rights generally,
(y) the availability of equitable remedies may be limited by
equitable principles of general applicability and (z) any rights
to indemnity and contribution may be limited by federal and state
securities laws and public policy considerations.
(f) The Notes have been duly authorized and, when
executed, authenticated and delivered to and paid for by the
Placement Agent in accordance with the terms of this Agreement,
will (x) be valid and binding obligations of the Company
enforceable in accordance with their terms, except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer or similar laws affecting creditors' rights
generally and (B) rights of acceleration, if applicable, and the
availability of equitable remedies may be limited by equitable
principles of general applicability and (y) be entitled to the
benefits of the Indenture. The Notes conform in all material
respects to the description thereof contained in the Supplemented
Memorandum under the heading "Description of the Notes."
(g) The Indenture has been duly authorized, executed
and delivered by, and is a valid and binding agreement of, the
Company, enforceable in accordance with its terms except as
(x) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer or similar laws affecting
<PAGE>
creditors' rights generally and (y) rights of acceleration, if
applicable, and the availability of equitable remedies may be
limited by equitable principles of general applicability. The
Indenture conforms in all material respects to the description
thereof contained in the Supplemented Memorandum under the
heading "Description of the Notes."
(h) The Amendment to the Bank Credit Facility has been
duly authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable in accordance with
its terms except as (x) the enforceability thereof may be limited
by bankruptcy, insolvency, fraudulent transfer or similar laws
affecting creditors' rights generally and (y) rights of
acceleration, if applicable, and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(i) The consummation of the transactions comprising
the Recapitalization has been duly and validly authorized by all
necessary corporate action on the part of the Company and no
other corporate proceedings by the Company are necessary to
authorize such actions.
(j) Neither the Company nor any Subsidiary is in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it may
be bound or to which any of its properties may be subject, except
for such defaults that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
Subsidiaries, taken as a whole. The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture, the
Registration Rights Agreement, the Notes and the Amendment to the
Bank Credit Facility and the consummation of the Recapitalization
will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of
its Subsidiaries or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any Subsidiary, and, based upon the representations,
warranties and covenants of the Placement Agent in Section 6
hereof, no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this
Agreement, the Indenture, the Notes or the Amendment to the Bank
Credit Facility or the consummation of the Recapitalization
except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of
the Notes and, with respect to the Company's obligations under
the Registration Rights Agreement, except such as may be required
by the Securities Act, the Trust Indenture Act of 1939, as
amended, and the securities or Blue Sky laws of the various
states.
<PAGE>
(k) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole, from that set forth in the Final
Memorandum.
(l) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which
the Company or any of its Subsidiaries is a party or to which any
of the properties of the Company or any of its Subsidiaries is
subject other than proceedings accurately described in all
material respects in the Final Memorandum and proceedings that
would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole, or on the power or ability of the
Company to perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement, the Notes or the
Amendment to the Bank Credit Facility or to consummate the
Recapitalization or the other transactions contemplated by the
Supplemented Memorandum.
(m) Neither the Company nor any affiliate (as defined
in Rule 501(b) of Regulation D under the Securities Act, an
"Affiliate") of the Company has directly, or through any agent
(other than the Placement Agent), (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will
be integrated with the sale of the Notes in a manner that would
require the registration under the Securities Act of the Notes or
(ii) engaged in any form of general solicitation or general
advertising in connection with the offering of the Notes (as
those terms are used in Regulation D under the Securities Act) or
in any manner involving a public offering of the Notes within the
meaning of Section 4(2) of the Securities Act.
(n) The Company is not, and after giving effect to the
offering and sale of the Notes and the application of the
proceeds thereof as described in the Supplemented Memorandum will
not be, an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
(o) Based upon the representations, warranties and
covenants of the Placement Agent in Section 6 hereof, it is not
necessary in connection with the offer, sale and delivery of the
Notes to the Placement Agent in the manner contemplated by this
Agreement to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as
amended.
(p) Except as disclosed in the Final Memorandum, the
Company and its Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have received all material permits, licenses or other
<PAGE>
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals is not reasonably expected,
singly or in the aggregate, to have a material adverse effect on
the Company and its Subsidiaries, taken as a whole.
(q) In the ordinary course of its business, the
Company reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in
the course of which it identifies and evaluates associated costs
and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On
the basis of such review, the Company reasonably believes that
such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(r) None of the Company, its Affiliates or any person
acting on its or their behalf (other than the Placement Agent)
has engaged in any directed selling efforts (as that term is
defined in Regulation S) with respect to the Notes and the
Company and its Affiliates and any person acting on its or their
behalf (other than the Placement Agent) have complied with the
offering restrictions requirement of Regulation S.
(s) The financial statements included in the Final
Memorandum (excluding the pro forma financial data) present
fairly (a) the financial position of the Company and its
Subsidiaries on a consolidated basis as of the dates indicated
and (b) the results of operations and cash flows of the Company
and its Subsidiaries on a consolidated basis for the periods
specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved. The
summary financial information and selected financial data
included in the Final Memorandum (excluding pro forma financial
information) present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
consolidated financial statements included in each Memorandum
except for the accounting method change described in each
Memorandum. The pro forma financial statements and other pro
forma financial information included in the Supplemented
Memorandum present fairly the information shown therein, have
been prepared in all material respects in accordance with the
Commission's rules and guidelines with respect to pro forma
financial statements, have been properly compiled on the pro
forma bases described therein and, in the opinion of the Company,
the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein.
<PAGE>
(t) No part of the proceeds of the sale of the Notes
will be used for any purpose that violates the provisions of any
of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of
Governors.
(u) The Company and the Subsidiaries each maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization;
(B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and its
Subsidiaries have not made, and, to the knowledge of the Company,
no employee or agent of the Company or any Subsidiary has made,
any payment of the Company's funds or any Subsidiary's funds or
received or retained any funds in violation of any applicable
law, regulation or rule or that would be required to be disclosed
in the Final Memorandum.
(v) As of the time of purchase of the Notes on the
Closing Date or Option Closing Date, as the case may be, and
immediately after giving effect to the transactions contemplated
in this Agreement and the Supplemented Memorandum, the Company
will be Solvent. For purposes of this Agreement, "Solvent"
means, with respect to any person as of any date of
determination, that (a) the then fair saleable value of the
assets of such person is (i) greater than the then total amount
of liabilities (including contingent, subordinated, matured and
unliquidated liabilities) of such person and (ii) greater than
the amount that will be required to pay such person's probable
liability on such person's then existing debts as they become
absolute and matured, (b) such person's capital is not
unreasonably small in relation to its business or any
contemplated or undertaken transaction, and (c) such person does
not intend to incur, and neither believes nor reasonably should
have believed that in the future it will incur, debts beyond its
ability to pay such debts as they become due.
2. Offering. You have advised the Company that the
Placement Agent will make an offering of the Notes purchased by
the Placement Agent hereunder on the terms set forth in the
Supplemented Memorandum as soon as practicable after this
Agreement is entered into as in your judgment is advisable.
3. Purchase and Delivery. The Company, upon the
basis of the representations and warranties herein contained,
hereby agrees to sell to the Placement Agent, and the Placement
Agent, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter
stated, agrees to purchase from the Company, the Firm Notes at a
purchase price of 97.25% of the principal amount thereof (the
"Purchase Price").
<PAGE>
Payment for the Notes shall be made against delivery of
the Firm Notes at a closing (the "Closing") to be held at the
office of Shearman & Sterling, 599 Lexington Avenue, New York,
New York, at 10:00 A.M., local time, on May 10, 1996, or at such
other time on the same or such other date, not later than May 15,
1996, as shall be designated in writing by you. The time and
date of such payment are herein referred to as the Closing Date.
Payment for the Firm Notes shall be made in same day funds by
wire transfer to the Company's account at Marine Midland Bank,
140 Broadway, New York, New York, ABA No. 021001088, To Credit:
Moog Inc., Account No. 862-00002-5.
The Company, upon the basis of the representations and
warranties herein contained and subject to the Company receiving
the consent of the lenders under the Bank Credit Agreement to the
issuance and sale of the Additional Notes, hereby agrees to sell
to the Placement Agent the Additional Notes, and the Placement
Agent shall, subject to the consent of the Lenders under the Bank
Credit Agreement, have a one-time right to purchase up to
$20,000,000 of Additional Notes at the Purchase Price. If you
elect to exercise such option, you shall so notify the Company in
writing not later than five days after the date of this
Agreement, which notice shall specify the principal amount of
Additional Notes to be purchased by you and the date on which
such Additional Notes are to be purchased. Such date may be the
same as the Closing Date but not earlier than the Closing Date
nor later than five business days after the date of such notice.
Payment for any Additional Notes to be sold by the
Company shall be made at the closing (the "Option Closing") to be
held at the offices of Shearman & Sterling, 599 Lexington Avenue,
New York, New York, at 10:00 A.M. (local time), on the date
specified in the notice described above or on such other date, in
any event not later than May 17, 1996, as shall be designated in
writing by you. The time and date of such payment are
hereinafter referred to as the Option Closing Date. Payment for
the Additional Notes shall be made in same day funds by wire
transfer to the Company's account at Marine Midland Bank, 140
Broadway, New York, New York, ABA No. 021001088, To Credit: Moog
Inc., Account No. 862-00002-5.
Certificates for the Notes shall be in definitive form
and registered in such names and in such denominations as you
shall request in writing not less than one full business day
prior to the Closing Date or the Option Closing Date, as the case
may be. The certificates evidencing the Notes shall be delivered
to you on the Closing Date or the Option Closing Date, as the
case may be, with any transfer taxes payable in connection with
the transfer of the Notes to you duly paid, against payment of
the purchase price therefor.
4. Conditions to Closing. The obligations of the
Placement Agent under this Agreement to purchase the Firm Notes
and the Additional Notes, as the case may be, will be subject to
the following conditions:
(a) Subsequent to the date of this Agreement and prior
to the Closing Date or the Optional Closing Date, as the case may
be,
<PAGE>
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its Subsidiaries,
taken as a whole, from that set forth in the Preliminary
Memorandum that, in your judgment, is material and adverse
and that makes it, in your judgment, impracticable to market
the Notes on the terms and in the manner contemplated in the
Supplemented Memorandum.
(b) You shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate, dated the
Closing Date or the Option Closing Date, as the case may be, and
signed by an executive officer of the Company, to the effect set
forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date or the
Option Closing Date, as the case may be, and that the Company has
complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or before
the Closing Date or the Option Closing Date, as the case may be.
The officer signing and delivering such certificate may
rely upon the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date or the
Option Closing Date, as the case may be, an opinion of Phillips,
Lytle, Hitchcock, Blaine & Huber, independent counsel for the
Company, dated the Closing Date or the Option Closing Date, as
the case may be, to the effect set forth in Exhibit B, which in
the case of an opinion delivered on the Option Closing Date will
include appropriate modifications.
(d) You shall have received on the Closing Date or the
Optional Closing Date, as the case may be, an opinion of Shearman
& Sterling, counsel for the Placement Agent, dated the Closing
Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to you.
(e) You shall have received on each of the dates
hereof and the Closing Date or the Option Closing Date, as the
case may be, a letter, dated the date hereof, the Closing Date or
the Option Closing Date, as the case may be, in form and
substance satisfactory to you, from KPMG Peat Marwick LLP,
containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Final Memorandum and the Supplemented Memorandum.
<PAGE>
(f) Prior to the Option Closing Date, the Company
shall have received the consent of the lenders under the Bank
Credit Facility to the issuance and sale of the Additional Notes.
(g) You shall have received such other documents and
certificates of the Company as you or your counsel shall have
reasonably requested.
5. Covenants of the Company. In further
consideration of the agreements of the Placement Agent contained
in this Agreement, the Company covenants as follows:
(a) To furnish to you, without charge, during the
period mentioned in paragraph (c) below, as many copies of the
Final Memorandum and any supplements and amendments thereto as
you may reasonably request and to use its best efforts to deliver
such copies of the Final Memorandum to you by 5 p.m. (New York
time) on the day following the execution of this Agreement.
(b) Before amending or supplementing any Memorandum to
furnish to you a copy of each such proposed amendment or
supplement and not to use any such proposed amendment or
supplement to which you reasonably object.
(c) If, during such period after the date hereof and
prior to the completion of the sale of the Notes by the Placement
Agent in accordance with Section 6 hereof, any event shall occur
or condition exist as a result of which it is necessary in your
judgment or the judgment of the Company to amend or supplement
the Supplemented Memorandum in order to make the statements
therein, in the light of the circumstances when such Memorandum
is delivered to a purchaser, not misleading, or if, in the
opinion of counsel to the Placement Agent or counsel to the
Company, it is necessary to amend or supplement such Memorandum
to comply with applicable law, forthwith to prepare and furnish,
at its own expense, to the Placement Agent, either amendments or
supplements to such Memorandum so that the statements in such
Memorandum as so amended or supplemented will not, in the light
of the circumstances when such Memorandum is delivered to a
purchaser, be misleading or so that such Memorandum as so amended
or supplemented, will comply in all material respects with
applicable law.
(d) To endeavor, in cooperation with you, to qualify
the Notes for offer and sale under the applicable securities or
Blue Sky laws of such jurisdictions as you may reasonably
request; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(e) Whether or not any sale of such Notes is
consummated, to pay all expenses incident to the performance of
its obligations under this Agreement, including: (i) the
preparation of each Memorandum and all amendments and supplements
<PAGE>
thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel
and accountants and the Trustee and its counsel, (iv) the
qualification of such Notes under securities or Blue Sky laws in
accordance with the provisions of Section 5(d), including filing
fees and the fees and disbursements of counsel for the Placement
Agent in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda,
(v) the printing and delivery to the Placement Agent in
quantities as hereinabove stated of copies of each Memorandum and
any amendments or supplements thereto, (vi) any fees charged by
rating agencies for the rating of such Notes, (vii) all document
production charges and expenses of counsel to the Placement Agent
(but not including their fees for professional services) in
connection with the preparation of this Agreement, (viii) the
fees and expenses, if any, incurred in connection with the
admission of such Notes for trading in PORTAL or any other
appropriate market system, and (ix) all other costs and expenses
(which shall not include the fees and expenses of counsel to the
Placement Agent) incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise
made in this Section.
(f) Neither the Company nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which
could be integrated with the sale of the Notes in a manner which
would require the registration under the Securities Act of such
Notes.
(g) Neither the Company nor any Affiliate will solicit
any offer to buy or offer or sell the Notes by means of any form
of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(h) While any of the Notes remain outstanding, to make
available, upon request, to any seller of such Notes the
information specified in Rule 144A(d)(4) under the Securities
Act, unless the Company is then subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(i) None of the Company, its Affiliates or any person
acting on its or their behalf (other than the Placement Agent)
will engage in any directed selling efforts (as that term is
defined in Regulation S) with respect to the Notes, and the
Company and its Affiliates and each person acting on its or their
behalf (other than the Placement Agent) will comply with the
offering restrictions of Regulation S.
(j) If requested by you, to use its best efforts to
permit the Notes to be designated PORTAL securities in accordance
with the rules and regulations adopted by the National
Association of Securities Dealers, Inc. relating to trading in
the PORTAL Market.
<PAGE>
(k) To apply the net proceeds from the sale of the
Notes in the manner set forth under the caption "The
Recapitalization" in the Supplemented Memorandum.
(l) To include in each Memorandum information
substantially in the form set forth in Exhibit C.
(m) To use its best efforts to obtain the consent of
the lenders under the Bank Credit Agreement to the issuance and
sale of the Additional Notes.
6. Offering of Notes; Restrictions on Transfer.
(a) The Placement Agent represents and warrants that it is a
qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB"). The Placement Agent agrees with the
Company that it and its Affiliates (i) have not solicited and
will not solicit offers for, or offer or sell, such Notes by any
form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in
any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act and (ii) have and will solicit
offers for such Notes only from, and have and will offer such
Notes only to, persons that it reasonably believes to be (A) in
the case of offers inside the United States, (x) QIBs or
(y) other institutional accredited investors (as defined in
Rule 501(a) (1), (2), (3) or (7) under the Securities Act)
("institutional accredited investors") that, prior to their
purchase of the Notes, deliver to such Placement Agent a letter
containing the representations and agreements set forth in
Appendix A to each Memorandum and (B) in the case of offers
outside the United States, to persons other than "U.S. persons"
("foreign purchasers", which term shall include dealers or other
professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an
estate or trust)) that, in each case, in purchasing such Notes
are deemed to have represented and agreed as provided in the
Supplemented Memorandum under the caption "Transfer
Restrictions."
(b) The Placement Agent represents, warrants, and
agrees with respect to offers and sales outside the United States
that:
(i) it understands that no action has been or will be
taken in any jurisdiction by the Company that would
constitute a public offering of the Notes, or permit
possession or distribution of any Memorandum or any other
offering or publicity material relating to the Notes, in any
country or jurisdiction where action for that purpose is
required;
(ii) the Placement Agent and its Affiliates have
complied and will comply with all applicable laws and
regulations in each jurisdiction in which it acquires,
offers, sells or delivers Notes or has in its possession or
distributes any Memorandum or any such other material, in
all cases at its own expense;
<PAGE>
(iii) the Notes have not been and will not be
registered under the Securities Act and have not been and
will not be offered or sold by the Placement Agent or its
Affiliates within the United States or to, or for the
account or benefit of, U.S. persons except in accordance
with Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the
Securities Act;
(iv) the Placement Agent has offered the Notes and will
offer and sell the Notes (A) as part of their distribution
at any time and (B) otherwise until 40 days after the later
of the commencement of the offering of the Notes and the
Option Closing Date, only in accordance with Rule 903 of
Regulation S or another exemption from the registration
requirements of the Securities Act. Accordingly, neither
the Placement Agent nor its Affiliates have engaged or will
engage in any directed selling efforts (within the meaning
of Regulation S) with respect to the Notes, and the
Placement Agent and its Affiliates have complied and will
comply with the offering restrictions requirements of
Regulation S;
(v) the Placement Agent has (A) not offered or sold
and will not offer or sell any Notes to persons in the
United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public
in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 (the "Regulations");
(B) complied and will comply with all applicable provisions
of the Financial Services Act 1986 and the Regulations with
respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom; and (C) only
issued or passed on and will only issue or pass on to any
person in the United Kingdom any document received by it in
connection with the issue of the Notes if that person is of
a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1995
or is a person to whom such document may otherwise lawfully
be issued or passed on;
(vi) the Placement Agent understands that the Notes
have not been and will not be registered under the
Securities and Exchange Law of Japan, and represents that it
has not offered or sold, and agrees that it will not offer
or sell, any Notes, directly or indirectly in Japan or to
any resident of Japan except (A) pursuant to an exemption
from the registration requirements of the Securities and
Exchange Law of Japan and (B) in compliance with any other
applicable requirements of Japanese law; and
(vii) the Placement Agent agrees that, at or prior to
confirmation of sales of the Notes, it will have sent to
each distributor, dealer or person receiving a selling
<PAGE>
concession, fee or other remuneration that purchases Notes from
it during the restricted period a confirmation or notice to
substantially the following effect:
"The Notes covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities
Act") and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date,
except in either case in accordance with Regulation S
(or Rule 144A, if available) under the Securities Act.
Terms used above have the meaning given to them by
Regulation S".
Terms used in this Section 6 have the meanings given to them by
Regulation S.
7. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless the Placement
Agent, and each person, if any, who controls the Placement Agent
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, or is under common control with,
or is controlled by, the Placement Agent, from and against any
and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably
incurred by the Placement Agent or any such controlling or
affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Memorandum (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except
insofar as such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the
Placement Agent furnished to the Company in writing by the
Placement Agent expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to the
Preliminary Memorandum shall not inure to the benefit of the
Placement Agent or any person controlling the Placement Agent, if
a copy of the Final Memorandum (as then amended or supplemented
if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of the Placement
Agent to the person asserting any such losses, claims, damages or
liabilities, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Notes to
such person, and if the Final Memorandum (as then amended or
supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) The Placement Agent agrees to indemnify and hold
harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of
<PAGE>
either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from
the Company to the Placement Agent, but only with reference to
information relating to the Placement Agent furnished to the
Company in writing by the Placement Agent expressly for use in
any Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) above, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may
be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party
to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing
by _________________________________ in the case of parties
indemnified pursuant to paragraph (a) above and by the Company in
the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of
any proceeding in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above effected without
its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 90 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
<PAGE>
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 7 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, on the
one hand, and the Placement Agent, on the other hand, from the
offering of such Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Placement Agent on
the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Placement Agent on the other hand in connection with the offering
of such Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes
(before deducting expenses) received by the Company and the total
discounts and commissions received by the Placement Agent in
respect thereof bear to the aggregate offering price of such
Notes. The relative fault of the Company on the one hand and of
the Placement Agent on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or by the Placement Agent and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company and the Placement Agent agree that it
would not be just or equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the Placement
Agent shall not be required to contribute any amount in excess of
the amount by which the total price at which the Notes resold by
it in the initial placement of such Notes were offered to
investors exceeds the amount of any damages that the Placement
Agent has otherwise been required to pay by reason of such untrue
<PAGE>
or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The indemnity and contribution
provisions contained in this Section 7 and the representations
and warranties of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation
made by or on behalf of the Placement Agent or any person
controlling the Placement Agent or by or on behalf of the
Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Notes.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
8. Termination. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after
the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of
Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-
counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal
or New York State authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your
judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event
singly or together with any other such event makes it, in your
judgment, impracticable to market the Notes on the terms and in
the manner contemplated in the Supplemented Memorandum.
9. Miscellaneous. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were
upon the same instrument.
If this Agreement shall be terminated by the Placement
Agent because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement,
the Company will reimburse the Placement Agent for all out-of-
pocket expenses (including the fees and disbursements of its
counsel) reasonably incurred by the Placement Agent in connection
with this Agreement or the offering contemplated hereunder.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
<PAGE>
The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
<PAGE>
Please confirm your agreement to the foregoing by
signing in the space provided below for that purpose and
returning to us a copy hereof, whereupon this Agreement shall
constitute a binding agreement between us.
Very truly yours,
MOOG INC.
By___________________
Name:
Title:
Agreed,
_______________________
By___________________
Name:
Title:
<PAGE>
SCHEDULE I
SUBSIDIARIES OF MOOG INC.
Name Ownership
Moog AG Moog Inc.
Moog Australia Proprietary Limited Moog Inc.
Moog do Brasil Controles Ltda. Moog Inc.
Moog Buhl Automation (branch office)
Moog Controls Corporation Moog Inc.
Moog Controls Hong Kong Limited Moog Inc.
Moog Controls (India) Private Limited Moog Inc.
Moog Controls Limited Moog Inc.
Moog Norden A.B. Moog Controls Ltd.
Moog OY Moog Controls Ltd.
Moog FSC Ltd. Moog Inc.
Moog GmbH Moog Inc.
Moog Italiana S.r.1. Moog GmbH (90%)
Moog Inc. (10%)
Moog Industrial Controls Corporation Moog Inc.
Moog Japan Ltd. Moog Inc. (90%)
Moog Korea Ltd. Moog Inc.
Moog Properties Inc. Moog Inc.
Moog S.A.R.L. Moog Inc. (95%)
Moog GmbH (5%)
Moog SNC Moog S.A.R.L.
Moog Singapore Pte. Ltd. Moog Inc.
<PAGE>
EXHIBIT C
Each Memorandum shall contain language to the following
effect:
By its purchase of Notes, each purchaser of Notes will
be deemed to:
(1) represent that it is purchasing the Notes for its
own account or an account with respect to which it exercises
sole investment discretion and that it and any such account
is (i) a QIB, and is aware that the sale to it is being made
in reliance on Rule 144A, (ii) an Institutional Accredited
Investor, or (iii) a foreign purchaser that is outside the
United States (or a foreign purchaser that is a dealer or
other fiduciary referred to above);
(2) acknowledge that the Notes have not been
registered under the Securities Act and may not be offered
or sold within the United States or to, or for the account
or benefit of, U.S. persons except as set forth below;
(3) if it is a person other than a foreign purchaser
outside the United States, agree that if it should resell or
otherwise transfer the Notes within the time period referred
to in Rule 144(k) under the Securities Act with respect to
such transfer, it will do so only (i) to the Company or any
Subsidiary thereof, (ii) inside the United States to a QIB
in compliance with Rule 144A, (iii) inside the United States
to an Institutional Accredited Investor that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Notes (the form of
which letter can be obtained from the Trustee) and, if such
transfer is in respect of an aggregate principal amount of
Notes at the time of transfer of less than $100,000, an
opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (iv)
outside the United States in compliance with Rule 904 under
the Securities Act, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act
(if available) or (vi) pursuant to an effective registration
statement under the Securities Act. Each Institutional
Accredited Investor that is not a QIB and that is an
original purchaser of the Notes will be required to sign an
agreement to the foregoing effect in the form attached
hereto as Appendix A. Subject to the procedures set forth
under "Description of the Notes-Book-Entry; Delivery and
Form", prior to any proposed transfer of any of the Notes
(otherwise than pursuant to an effective registration
statement) within the time period referred to above, the
Holder thereof must check the appropriate box set forth on
the reverse side of its Notes relating to the manner of such
transfer and submit the Notes to the Trustee;
(4) agree that it will deliver to each person to whom
it transfers Notes notice of any restrictions on transfer of
such Notes;
<PAGE>
(5) if it is a foreign purchaser outside the United
States, understand that the Notes will be represented by the
Regulation S Global Note and that transfers thereof are
restricted as described under "Description of the
Notes-Book-Entry; Delivery and Form." If it is a QIB, it
understands that the Notes offered in reliance on Rule 144A
will be represented by the Restricted Global Note. Before
any interest in the Restricted Global Note may be offered,
sold, pledged or otherwise transferred to a person who is
not a QIB, the transferee will be required to provide the
Trustee with a written certification (the form of which
certification can be obtained from the Trustee) as to
compliance with the transfer restriction referred to above;
(6) understand that the Notes (other than those issued
to foreign purchasers or in substitution or exchange
therefor) will bear a legend to the following effect unless
otherwise agreed by the Company and the holder thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED
TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT WITH
RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO MOOG INC. OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS
THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO MOOG INC.
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
<PAGE>
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
AND MOOG INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
(7) and acknowledge that the Company, the Placement
Agent and others will rely upon the truth and accuracy of
the foregoing acknowledgements, representations and
agreements, and agrees that if any of the acknowledgements,
representations or warranties deemed to have been made by it
by its purchase of Notes are no longer accurate, it shall
promptly notify the Company and the Placement Agent. If it
is acquiring any Notes as a fiduciary or agent for one or
more investor accounts, it represents that it has sole
investment discretion with respect to each such account and
it has full power to make the foregoing acknowledgements,
representations and agreements on behalf of each such
account.
Each Memorandum shall also contain language to the
following effect:
"Each person receiving this Memorandum acknowledges
that (i) such person has been afforded an opportunity to
request from the Company and to review, and has received,
all additional information considered by it to be necessary
to verify the accuracy of, or to supplement, the information
contained herein, (ii) such person has not relied on the
Placement Agent or any person affiliated with the Placement
Agent in connection with its investigation of the accuracy
of such information or its investment decision, and (iii) no
person has been authorized to give any information or to
make any representation concerning the Company or the Notes
(other than as contained herein and information given by
duly authorized officers and employees of the Company in
connection with investors' examination of the Company and
the terms of the Offering), and, if given or made, any such
other information or representation should not be relied
upon as having been authorized by the Company or the
Placement Agent."
<PAGE>
EXHIBIT (iii)
REGISTRATION RIGHTS AGREEMENT
Dated May 10, 1996
between
MOOG INC.
and
_________________________________
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into May 10, 1996, between MOOG INC., a New York
corporation (the "Company"), and ______________________________
(the "Placement Agent").
This Agreement is made pursuant to the Placement
Agreement dated May 7, 1996 between the Company and the Placement
Agent, as amended and restated on May 10, 1996 (as so amended and
restated, the "Placement Agreement"), which provides for the sale
by the Company to the Placement Agent of up to $120 million
aggregate principal amount of the Company's 10% Senior
Subordinated Notes due 2006 (the "Notes"). In order to induce
the Placement Agent to enter into the Placement Agreement, the
Company has agreed to provide to the Placement Agent and its
direct and indirect transferees the registration rights set forth
in this Agreement. The execution of this Agreement is a
condition to the closing under the Placement Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Closing Date" shall mean the Closing Date as defined
in the Placement Agreement.
"Company" shall have the meaning set forth in the
preamble to this Agreement and shall also include the
Company's successors.
"Exchange Notes" shall mean securities issued by the
Company under the Indenture containing terms identical to
the Notes (except that (i) interest thereon shall accrue
from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from November 10,
1996, (ii) the Exchange Notes will not contain restrictions
on transfer, and (iii) the Exchange Notes will not contain
provisions relating to an increase in their interest rate
under certain circumstances) to be offered to Holders of
Notes in exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Notes for Registrable Notes pursuant to
Section 2(a) hereof.
<PAGE>
"Exchange Offer Registration" shall mean a registration
under the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form) and all amendments
and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Holder" shall mean the Placement Agent, for so long as
it owns any Registrable Notes, and each of its direct and
indirect transferees who become registered owners of
Registrable Notes under the Indenture; provided that for
purposes of Sections 4 and 5 of this Agreement, the term
"Holder" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the
Notes to be dated as of May 10, 1996 between the Company and
Fleet National Bank, as trustee, and as the same may be
amended from time to time in accordance with the terms
thereof.
"Majority Holders" shall mean the Holders of a majority
of the aggregate principal amount of outstanding Registrable
Notes; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or
any of its affiliates (as such term is defined in Rule 405
under the 1933 Act) shall not be counted in determining
whether such consent or approval was given by the Holders of
such required percentage or amount.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Placement Agent" shall have the meaning set forth in
the preamble to this Agreement.
"Placement Agreement" shall have the meaning set forth
in the preamble to this Agreement.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary
prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Notes covered by
a Shelf Registration Statement, and by all other amendments
and supplements to such prospectus, and in each case
including all material incorporated by reference therein.
"Registrable Notes" shall mean the Notes; provided,
however, that the Notes shall cease to be Registrable Notes
(i) when a Registration Statement with respect to such Notes
<PAGE>
shall have been declared effective under the 1933 Act and
such Notes shall have been disposed of pursuant to such
Registration Statement, (ii) when such Notes have become
eligible for resale pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933
Act or (iii) when such Notes shall have ceased to be
outstanding.
"Registration Expenses" shall mean, except as otherwise
specifically provided in this Agreement, any and all
expenses incident to performance of or compliance by the
Company with this Agreement, including without limitation:
(i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii)
all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable
fees and disbursements of one counsel for any underwriters
or selling Holders in connection with blue sky qualification
of any Registrable Notes or, with respect to Participating
Broker-Dealers (as defined herein), any Exchange Notes),
(iii) all expenses of preparing, printing and distributing
any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to
the performance of and compliance with this Agreement, (iv)
all required rating agency fees, (v) all fees and
disbursements relating to the qualification of the Indenture
under applicable securities laws, (vi) the fees and
disbursements of the Trustee (including the reasonable fees
and disbursements of its counsel), (vii) the fees and
disbursements of counsel for the Company and, in the case of
a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders (which counsel
shall be selected by the Majority Holders and which counsel
may also be counsel for the Placement Agent) and (viii) the
fees and disbursements of the independent public accountants
of the Company, including the expenses of any special audits
or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees and expenses
of counsel to the underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of Registrable
Notes by a Holder.
"Registration Statement" shall mean any registration
statement of the Company that covers any of the Exchange
Notes or Registrable Notes pursuant to the provisions of
this Agreement and all amendments and supplements to any
such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated
by reference therein.
"SEC" shall mean the Securities and Exchange
Commission.
<PAGE>
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the
provisions of Section 2(b) of this Agreement which covers
all of the Registrable Notes (but no other securities unless
approved by the Holders whose Registrable Notes are covered
by such Shelf Registration Statement) on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that
may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Notes under the Indenture.
"Underwritten Registration" or "Underwritten Offering"
shall mean a registration in which Registrable Notes are
sold to an Underwriter (as hereinafter defined) for
reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law
or applicable interpretation of the Staff of the SEC, the Company
shall use its best efforts to cause to be filed after the Closing
Date an Exchange Offer Registration Statement covering the offer
by the Company to the Holders to exchange all of the Registrable
Notes (except Registrable Securities held by the Placement Agent
and acquired directly from the Company if the Placement Agent is
not permitted, pursuant to applicable law or SEC staff
interpretation, to participate in the Exchange Offer) for
Exchange Notes and to have such Registration Statement remain
effective until the closing of the Exchange Offer. The Company
shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the
SEC and use its best efforts to have the Exchange Offer
consummated not later than 60 days after such effective date.
The Company shall commence the Exchange Offer by mailing the
related exchange offer Prospectus and accompanying documents to
each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable
Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall
be a period of at least 20 business days from the date such
notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Note not tendered or
tendered and validly withdrawn will remain outstanding and
continue to accrue interest (but not at any increased rate
<PAGE>
provided for under certain circumstances in such Notes), but
will not retain any rights under this Registration Rights
Agreement;
(iv) that each Holder electing to have a Registrable
Note exchanged pursuant to the Exchange Offer will be
required to surrender such Registrable Note, together with
the enclosed letter of transmittal, to the institution and
at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice prior to the close
of business on the last Exchange Date; and
(v) that each Holder will be entitled to withdraw its
election, not later than the close of business on the last
Exchange Date, by sending to the institution and at the
address (located in the Borough of Manhattan, The City of
New York) specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Notes
delivered for exchange and a statement that such Holder is
withdrawing its election to have such Notes exchanged.
As soon as practicable after the last Exchange Date,
the Company shall:
(i) accept for exchange Registrable Notes or portions
thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Registrable Notes or portions thereof
so accepted for exchange by the Company and issue, and cause
the Trustee to promptly authenticate and mail to each
Holder, Exchange Notes equal in principal amounts to the
principal amount of the Registrable Notes surrendered by
such Holder.
The Company shall use its best efforts to complete the Exchange
Offer as provided above and shall comply with the applicable
requirements of the 1933 Act, the 1934 Act and other applicable
laws and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than
(i) that the Exchange Offer does not violate applicable law or
any applicable interpretation of the Staff of the SEC, (ii) that
no action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency or body with
respect to the Exchange Offer, (iii) that there shall not have
been adopted or enacted any law, statute, rule or regulation that
would render the Exchange Offer illegal, and (iv) such other
conditions as may be reasonably acceptable to the Placement Agent
which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange
Offer. In addition, each Holder of Registrable Securities (other
than a Participating Broker-Dealer) who wishes to exchange such
Registrable Securities for Exchange Notes in the Exchange Offer
will be required to represent that (A) it is not an affiliate of
the Company, (B) any Exchange Notes to be received by it were
<PAGE>
acquired in the ordinary course of business and (C) it has no
arrangement with any Person to participate in a distribution
(within the meaning of the 1933 Act) of the Exchange Notes. Each
Participating Broker-Dealer shall be required to make such
representations as, in the reasonable judgment of the Company,
may be necessary under applicable SEC rules, regulations or
interpretations. Each Holder (including a Participating Broker-
Dealer) shall be required to make such other representations as
may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or
another appropriate form under the 1933 Act available. The
Exchange Offer shall be subject to the further condition that no
stop order shall have been issued by the SEC or any state
securities authority suspending the effectiveness of the Exchange
Offer Registration Statement and no proceedings shall have been
initiated or, to the knowledge of the Company, threatened for
that purpose. The Company shall inform the Placement Agent of
the names and addresses of the Holders to whom the Exchange Offer
is made, and the Placement Agent shall have the right, subject to
applicable law, to contact such Holders and otherwise facilitate
the tender of Registrable Notes in the Exchange Offer.
(b) In the event that (i) the Company determines that
the Exchange Offer Registration provided for in Section 2(a)
above is not available or may not be consummated as soon as
practicable after the last Exchange Date, (ii) the Exchange Offer
is not for any other reason consummated by November 10, 1996 or
(iii) the Exchange Offer has been completed and in the opinion of
counsel for the Placement Agent a Registration Statement must be
filed and a Prospectus must be delivered by the Placement Agent
in connection with any offering or sale of Registrable Notes, the
Company shall use its best efforts to cause to be filed as soon
as practicable after such determination, date or notice of such
opinion of counsel is given to the Company, as the case may be, a
Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Notes and to have such Shelf
Registration Statement declared effective by the SEC. The
Company agrees to use its best efforts to keep the Shelf
Registration Statement continuously effective until the third
anniversary of the Closing Date or such shorter period that will
terminate when all of the Registrable Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement. The Company further agrees to supplement
or amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration
form used by the Company for such Shelf Registration Statement or
by the 1933 Act or by any other rules and regulations thereunder
for shelf registration or if reasonably requested by a Holder
with respect to information relating to such Holder, and to use
reasonable efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable
as soon as thereafter practicable. The Company agrees to furnish
to the Holders of Registrable Notes copies of any such supplement
or amendment promptly after its being used or filed with the SEC.
<PAGE>
(c) The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or
Section 2(b), provided, however, that with respect to a
registration pursuant to Section 2(b)(iii), the Placement Agent
shall pay the fees and disbursements of its legal counsel
incurred in connection with such registration. Each Holder shall
pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such
Holder's Registrable Notes pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant
to Section 2(a) hereof or a Shelf Registration Statement pursuant
to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC;
provided, however, that, if, after it has been declared
effective, the offering of Registrable Notes pursuant to a Shelf
Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be
deemed not to have become effective during the period of such
interference until the offering of Registrable Notes pursuant to
such Registration Statement may legally resume. As provided for
in the Indenture, in the event that the Exchange Offer is not
consummated, and if a Shelf Registration Statement is required
hereby, the Shelf Registration Statement is not declared
effective, on or prior to November 10, 1996, the interest rate on
the Notes (and the Exchange Notes) will permanently increase by
0.5% per annum.
(e) Without limiting the remedies available to the
Placement Agent and the Holders, the Company acknowledges that
any failure by the Company to comply with its obligations under
Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Placement Agent or the Holders for
which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Placement Agent or any
Holder may obtain such relief as may be required to specifically
enforce the Company's obligations under Section 2(a) and
Section 2(b) hereof.
3. Registration Procedures.
In connection with the obligations of the Company with
respect to the Registration Statements pursuant to Section 2(a)
and Section 2(b) hereof, the Company shall as expeditiously as
possible:
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the 1933 Act, which
form (x) shall be selected by the Company and (y) shall, in
the case of a Shelf Registration, be available for the sale
of the Registrable Notes by the selling Holders thereof and
(z) shall comply as to form in all material respects with
the requirements of the applicable form and include all
financial statements required by the SEC to be filed
<PAGE>
therewith, and use its best efforts to cause such
Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement
effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to
Rule 424 under the 1933 Act; to keep each Prospectus current
during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by
brokers or dealers with respect to the Registrable Notes or
Exchange Notes;
(c) in the case of a Shelf Registration, furnish to
each Holder of Registrable Notes, to counsel for the
Placement Agent, to counsel for the Holders and to each
Underwriter of an Underwritten Offering of Registrable
Notes, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as
such Holder or Underwriter may reasonably request, in order
to facilitate the public sale or other disposition of the
Registrable Notes; and the Company consents to the use of
such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling
Holders of Registrable Notes and any such Underwriters in
connection with the offering and sale of the Registrable
Notes covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(d) use reasonable efforts to register or qualify the
Registrable Notes under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of
Registrable Notes covered by a Registration Statement shall
reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, to
cooperate with such Holders in connection with any filings
required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and
things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each
such jurisdiction of such Registrable Notes owned by such
Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d),
(ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if
it is not so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Notes, counsel for the Holders and
counsel for the Placement Agent promptly and, if requested
<PAGE>
by any such Holder or counsel, confirm such advice in
writing (i) when a Registration Statement has become
effective and when any post-effective amendment thereto has
been filed and becomes effective, (ii) of any request by the
SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or
for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Registration Statement and
the closing of any sale of Registrable Notes covered
thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to
the offering cease to be true and correct in all material
respects or if the Company receives any notification with
respect to the suspension of the qualification of the
Registrable Notes for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (v) of the
happening of any event during the period a Shelf
Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires
the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not
misleading and (vi) of any determination by the Company that
a post-effective amendment to a Registration Statement would
be appropriate;
(f) make reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration
Statement at the earliest practicable moment and provide
prompt notice to each Holder or its counsel of the
withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Notes, without charge, at least
one conformed copy of each Registration Statement and any
post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Notes to facilitate
the timely preparation and delivery of certificates
representing Registrable Notes to be sold and not bearing
any restrictive legends and enable such Registrable Notes to
be in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling
Holders may reasonably request at least one business day
prior to the closing of any sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon becoming
aware of the occurrence of any event contemplated by Section
3(e)(v) or (vi) hereof, use reasonable efforts to prepare
<PAGE>
and file with the SEC a supplement or post-effective
amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes, such
Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company
agrees to notify the Holders or their counsel and counsel to
the Placement Agent to suspend use of the Prospectus as
promptly as practicable after becoming aware of the
occurrence of such an event, and the Holders hereby agree to
suspend use of the Prospectus upon receipt of such notice
until the Company has amended or supplemented the Prospectus
to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide
copies of such document to the Placement Agent and its
counsel (and, in the case of a Shelf Registration Statement,
the Holders and their counsel) and make such of the
representatives of the Company as shall be reasonably
requested by the Placement Agent or its counsel (and, in the
case of a Shelf Registration Statement, the Holders or its
counsel) available for discussion of such document, and
shall not at any time file or make any amendment to the
Registration Statement, any Prospectus or any amendment of
or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the
Placement Agent and its counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall
not have previously been advised and furnished a copy or to
which the Placement Agent or its counsel (and, in the case
of a Shelf Registration Statement, the Holders or their
counsel) shall object, except for any amendment or
supplement or document (a copy of which has been previously
furnished to the Placement Agent and its counsel (and, in
the case of a Shelf Registration Statement, the Holders and
their counsel)) which counsel to the Company shall advise
the Company in writing is required in order to comply with
applicable law;
(k) obtain a CUSIP number for all Exchange Notes or
Registrable Notes, as the case may be, not later than the
effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Notes or
Registrable Notes, as the case may be, cooperate with the
Trustee and the Holders to effect such changes to the
<PAGE>
Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and
execute, and use its reasonable efforts to cause the Trustee
to execute, all documents as may be required to effect such
changes and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make
available for inspection by a representative of the Holders
of the Registrable Notes, any Underwriter participating in
any disposition pursuant to such Shelf Registration
Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and
properties of the Company, and cause the respective
officers, directors and employees of the Company to supply
all information reasonably requested by any such
representative, Underwriter, attorney or accountant in
connection with a Shelf Registration Statement; provided
that, if any such records, documents or other information
relates to pending or proposed acquisitions or dispositions,
or otherwise relates to matters reasonably considered by the
Company to constitute confidential or proprietary
information, the Company need not provide such records,
documents or information unless any required consents are
obtained and the foregoing parties enter into a
confidentiality agreement in customary form and reasonably
acceptable to such parties and the Company;
(n) In the case of a Shelf Registration, use
reasonable efforts to cause all Registrable Notes to be
listed on any securities exchange or any automated quotation
system on which similar securities issued by the Company are
then listed if requested by the Majority Holders, to the
extent such Registrable Notes satisfy applicable listing
requirements.
(o) use reasonable efforts to cause the Exchange Notes
or Registrable Notes, as the case may be, to be rated by two
nationally recognized statistical rating organizations (as
such term is defined in Rule 436(g)(2) under the 1933 Act)
unless such Notes are already so rated;
(p) if reasonably requested by any Holder of
Registrable Notes covered by a Registration Statement, (i)
promptly incorporate in a Prospectus supplement or post-
effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included
therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as
soon as the Company has received notification of the matters
to be incorporated in such filing; and
(q) in the case of a Shelf Registration, enter into
such customary agreements and take all such other actions in
connection therewith (including those requested by the
<PAGE>
Holders of a majority of the Registrable Notes being sold)
in order to expedite or facilitate the disposition of such
Registrable Notes including, but not limited to, an
Underwritten Offering and in such connection, (i) to the
extent possible, make such representations and warranties to
the Holders and any Underwriters of such Registrable Notes
with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated
by reference, if any, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when
requested, (ii) obtain an opinion of counsel to the Company
(which counsel and opinion, in form, scope and substance,
shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to the
selling Holders and Underwriter of Registrable Notes,
covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public
accountants of the Company (and, if necessary, any other
certified public accountant of any subsidiary of the
Company, or of any business acquired by the Company for
which financial statements and financial data are or are
required to be included in the Registration Statement)
addressed to each selling Holder and Underwriter of
Registrable Notes, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings,
and (iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in
principal amount of the Registrable Notes being sold or the
Underwriters, and which are customarily delivered in
underwritten offerings, to evidence the continued validity
of the representations and warranties of the Company made
pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in an underwriting
agreement.
In the case of a Shelf Registration Statement, the
Company may require each Holder of Registrable Notes to furnish
to the Company such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Notes as
the Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section
3(e)(v) or (vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Notes pursuant to a Registration
Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i)
hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in its
possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable
<PAGE>
Notes current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Registration Statement, the
Company shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and
including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such
dispositions.
Notwithstanding anything to the contrary set forth in
this Agreement, the Holders of Registrable Notes covered by a
Shelf Registration Statement who desire to do so may sell such
Registrable Notes in no more than one Underwritten Offering. In
any such Underwritten Offering, the Holders of a majority of the
Registrable Notes included in such offering shall select the
investment banker or investment bankers and manager or managers
(the "Underwriters") that will administer the offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that
any broker-dealer that receives Exchange Notes for its own
account in the Exchange Offer in exchange for Notes that were
acquired by such broker-dealer as a result of market-making or
other trading activities (a "Participating Broker-Dealer"), may
be deemed to be an "underwriter" within the meaning of the 1933
Act and must deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Notes.
The Company understands that it is the Staff's position
that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing
a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes,
without naming the Participating Broker-Dealers or specifying the
amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligation under the 1933 Act in connection
with resales of Exchange Notes for their own accounts, so long as
the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Company agrees that the
provisions of this Agreement as they relate to a Shelf
Registration shall also apply to an Exchange Offer Registration
to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Placement Agent or by one or
more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange Notes by Participating Broker-Dealers
consistent with the positions of the Staff recited in
Section 4(a) above; provided that:
(i) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
<PAGE>
Registration Statement, as would otherwise be contemplated
by Section 3(i), for a period exceeding 90 days after the
last Exchange Date (as such period may be extended pursuant
to the penultimate paragraph of Section 3 of this Agreement)
and Participating Broker-Dealers shall not be authorized by
the Company to deliver and shall not deliver such Prospectus
after such period in connection with the resales
contemplated by this Section 4; and
(ii) in connection with such application of the Shelf
Registration procedures set forth in Section 3 to an
Exchange Offer Registration, the Company shall be obligated
(x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be ______________
__________________ unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one
counsel representing the Participating Broker-Dealers, which
shall be counsel to the Placement Agent unless such counsel
elects not to so act and (z) to cause to be delivered only
one, if any, "cold comfort" letter or set of letters, as the
case may be, with respect to the Prospectus in the form
existing on the last Exchange Date and with respect to each
subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above.
(c) The Placement Agent shall have no liability to the
Company or any Holder with respect to any request that it may
make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
the Placement Agent, each Holder and each person, if any, who
controls the Placement Agent or any Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
or is under common control with, or is controlled by, the
Placement Agent or any Holder, from and against all losses,
claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred by the Placement
Agent, any Holder or any such controlling or affiliated person in
connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Exchange Notes or
Registrable Notes were registered under the 1933 Act, including
all information incorporated therein by reference, or caused by
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except
insofar as such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue
<PAGE>
statement or omission based upon information relating to the
Placement Agent or any Holder furnished to the Company in writing
by the Placement Agent or any selling Holder expressly for use
therein. In connection with any Underwritten Offering permitted
by Section 3, the Company will also indemnify the Underwriters,
if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers
and directors and each Person who controls such Persons (within
the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act) to the same extent as provided above with respect to
the indemnification of the Holders, if requested in connection
with any Registration Statement, provided that such Underwriters
shall indemnify and hold harmless the Company, its respective
directors and officers who sign the Registration Statement and
each Person, if any, who controls the Company within the meaning
of either Section 15 of the 1933 Act or Section 20 of the 1934
Act to the same extent as the indemnity from the Company to such
Underwriters, but only with reference to information relating to
such Underwriters furnished to the Company in writing by such
Underwriters expressly for use in such Registration Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Placement Agent and
the other selling Holders, and each of their respective
directors, officers who sign the Registration Statement and each
person, if any, who controls the Company, any Placement Agent and
any other selling Holder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act to the same extent
as the foregoing indemnity from the Company to the Placement
Agent and the Holders, but only with reference to information
relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or paragraph (b) above, such person (the
"indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any
<PAGE>
proceeding or related proceedings in the same jurisdiction, be
liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agent
and all persons, if any, who control the Placement Agent within
the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act, (b) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning
of either such Section and (c) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all
Holders and all persons, if any, who control any Holders within
the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In such case
involving the Placement Agent and persons who control the
Placement Agent, such firm shall be designated in writing by
_________________________________. In such case involving the
Holders and such persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other
cases, such firm shall be designated by the Company. The
indemnifying party shall not be liable for any settlement of any
proceeding in respect of which indemnity may be sought pursuant
to either paragraph (a) or (b) above effected without its written
consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 90 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in
accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement
of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or paragraph (b) of this Section 4 is unavailable
to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the
<PAGE>
other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative
fault of the Company and the Holders shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section
5(d) are several in proportion to the respective number of
Registrable Notes of such Holder that were registered pursuant to
a Registration Statement.
(e) The Company and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section
5 were determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to
indemnify or contribute any amount in excess of the amount by
which the total price at which Registrable Notes were sold by
such Holder exceeds the amount of any damages that such Holder
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions contained in
this Section 5 shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Placement Agent,
any Holder or any person controlling the Placement Agent or any
Holder, or by or on behalf of the Company, its officers or
directors or any person controlling the Company, (iii) acceptance
of any of the Exchange Notes and (iv) any sale of Registrable
Notes pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company hereby
represents to the Placement Agent and each Holder that (i) the
Company has not entered into, and on or after the date of this
Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of
<PAGE>
Registrable Notes in this Agreement or otherwise conflicts with
the provisions hereof and (ii) the rights granted to the Holders
hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the
Company's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification,
supplement, waiver or consent; provided, however, that this
Agreement may be amended, modified or supplemented, and waivers
and consents to departures from the provisions hereof may be
given, by written agreement signed by the Company and the
Placement Agent to the extent that any such amendment,
modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the staff of the
SEC) or any change therein; and provided further, however, that
the Company and the Placement Agent may by agreement without
notice to or the consent of any Holder amend, modify or
supplement this Agreement to cure any ambiguity, defect or
inconsistency so long as the interests of the Holders are not
adversely affected thereby. Notwithstanding anything to the
contrary in this Agreement, no amendment, modification,
supplement, waiver or consents to any departure from the
provisions of Section 5 hereof shall be effective as against any
Holder of Registrable Notes unless consented to in writing by
such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or
any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to
the Placement Agent, the address set forth in the Placement
Agreement; and (ii) if to the Company, initially at the Company's
address set forth in the Placement Agreement and thereafter at
such other address, notice of which is given in accordance with
the provisions of this Section 6(c).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the
next business day if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the person
giving the same to the Trustee, at the address specified in the
Indenture.
<PAGE>
(d) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including,
without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein
shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the
Placement Agreement, the Indenture or the Final Memorandum. If
any transferee of any Holder shall acquire Registrable Notes, in
any manner, whether by operation of law or otherwise, such
Registrable Notes shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Notes
such person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this
Agreement and such person shall be entitled to receive the
benefits hereof. The Placement Agent (in its capacity as
Placement Agent) shall have no liability or obligation to the
Company with respect to any failure by a Holder to comply with,
or any breach by any Holder of, any of the obligations of such
Holder under this Agreement.
(e) Purchases and Sales of Notes. The Company shall
not, and shall use its best efforts to cause its affiliates (as
defined in Rule 405 under the 1933 Act) not to, purchase and then
resell or otherwise transfer any Notes.
(f) Third Party Beneficiary. The Holders shall be
third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Placement Agent, on
the other hand, and the Placement Agent shall have the right to
enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York.
(j) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
MOOG INC.
By________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
_________________________________
By_______________________________
Name:
Title:
<PAGE>
EXHIBIT (iv)
_______________________________
MOOG INC.,
as Issuer
and
FLEET NATIONAL BANK,
as Trustee
_______________________________
Indenture
Dated as of May 10, 1996
10% Senior Subordinated Notes due 2006
______________________________
<PAGE>
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
Section 310(a)(1). . . . . . . . . 7.09
(a)(2) . . . . . . . . 7.09
(b) . . . . . . . . . . 7.07
Section 313(c) . . . . . . . . . . 7.05;11.02
Section 314(a) . . . . . . . . . . 4.17;11.02
(a)(4). . . . . . . . . 4.16;11.02
(c)(1). . . . . . . . . 11.03
(c)(2). . . . . . . . . 11.03
(e) . . . . . . . . . . 11.04
Section 315(b) . . . . . . . . . . 7.04;11.02
Section 316(a)(1)(A) . . . . . . . 6.05
(a)(1)(B) . . . . . . . 6.04
(b) . . . . . . . . . . 6.07
Section 317(a)(1). . . . . . . . . 6.08
(a)(2). . . . . . . . . 6.09
Section 318(a) . . . . . . . . . . 11.01
(c) . . . . . . . . . . 11.01
Note: The Cross-Reference Table shall not for any purpose be
deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY
ARTICLE ONE
Definitions and Incorporation by Reference
SECTION 1.01. Definitions 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act 20
SECTION 1.03. Rules of Construction 20
ARTICLE TWO
The Notes
SECTION 2.01. Form and Dating 21
SECTION 2.02. Restrictive Legends 22
SECTION 2.03. Execution, Authentication and
Denominations 24
SECTION 2.04. Registrar and Paying Agent 25
SECTION 2.05. Paying Agent to Hold Money in Trust 26
SECTION 2.06. Transfer and Exchange 26
SECTION 2.07. Book-Entry Provisions for
Global Notes 27
SECTION 2.08. Special Transfer Provisions 29
SECTION 2.09. Replacement Notes 31
SECTION 2.10. Outstanding Notes 32
SECTION 2.11. Temporary Notes 32
SECTION 2.12. Cancellation 33
SECTION 2.13. CUSIP Numbers 33
SECTION 2.14. Defaulted Interest 33
ARTICLE THREE
Redemption
SECTION 3.01. Right of Redemption 34
SECTION 3.02. Notices to Trustee 34
SECTION 3.03. Selection of Notes to Be Redeemed 34
SECTION 3.04. Notice of Redemption 35
SECTION 3.05. Effect of Notice of Redemption 36
SECTION 3.06. Deposit of Redemption Price 36
SECTION 3.07. Payment of Notes Called for
Redemption 36
SECTION 3.08. Notes Redeemed in Part 36
ARTICLE FOUR
Covenants
SECTION 4.01. Payment of Notes 37
SECTION 4.02. Maintenance of Office or Agency 37
SECTION 4.03. Limitation on Indebtedness 38
SECTION 4.04. Limitation on Senior Subordinated
Indebtedness 40
SECTION 4.05. Limitation on Restricted Payments 40
Note:The Table of Contents shall not for any purposes be deemed
to be a part of the Indenture.
<PAGE>
SECTION 4.06. Limitation on Dividend and
Other Payment Restrictions
Affecting Restricted Subsidiaries 43
SECTION 4.07. Limitation on the Issuance of
Capital Stock and Indebtedness
of Restricted Subsidiaries 44
SECTION 4.08. Limitation on Transactions with
Stockholders and Affiliates 45
SECTION 4.09. Limitation on Asset Sales 45
SECTION 4.10. Repurchase of Notes upon a Change of
Control 46
SECTION 4.11. Existence 46
SECTION 4.12. Payment of Taxes and Other Claims 47
SECTION 4.13. Maintenance of Properties
and Insurance 47
SECTION 4.14. Notice of Defaults 48
SECTION 4.15. Compliance Certificates 48
SECTION 4.16. Commission Reports and Reports to
Holders 48
SECTION 4.17. Waiver of Stay, Extension or
Usury Laws 49
ARTICLE FIVE
Successor Corporation
SECTION 5.01. When Company May Merge, Etc 49
SECTION 5.02. Successor Substituted 50
ARTICLE SIX
Default and Remedies
SECTION 6.01. Events of Default 50
SECTION 6.02. Acceleration 52
SECTION 6.03. Other Remedies 53
SECTION 6.04. Waiver of Past Defaults 53
SECTION 6.05. Control by Majority 53
SECTION 6.06. Limitation on Suits 53
SECTION 6.07. Rights of Holders to Receive Payment 54
SECTION 6.08. Collection Suit by Trustee 54
SECTION 6.09. Trustee May File Proofs of Claim 55
SECTION 6.10. Priorities 55
SECTION 6.11. Undertaking for Costs 56
SECTION 6.12. Restoration of Rights and Remedies 56
SECTION 6.13. Rights and Remedies Cumulative 56
SECTION 6.14. Delay or Omission Not Waiver 56
ARTICLE SEVEN
Trustee
SECTION 7.01. Rights of Trustee 57
SECTION 7.02. Individual Rights of Trustee 59
SECTION 7.03. Trustee's Disclaimer 59
SECTION 7.04. Notice of Default 59
SECTION 7.05. Reports by Trustee to Holders 59
SECTION 7.06. Compensation and Indemnity 59
SECTION 7.07. Replacement of Trustee 60
SECTION 7.08. Successor Trustee by Merger, Etc 62
<PAGE>
SECTION 7.09. Eligibility 62
SECTION 7.10. Money Held in Trust 62
ARTICLE EIGHT
Discharge of Indenture
SECTION 8.01. Termination of Company's Obligations 62
SECTION 8.02. Defeasance and Discharge of
Indenture 63
SECTION 8.03. Defeasance of Certain Obligations 66
SECTION 8.04. Application of Trust Money 68
SECTION 8.05. Repayment to Company 68
SECTION 8.06. Reinstatement 69
ARTICLE NINE
Amendments, Supplements and Waivers
SECTION 9.01. Without Consent of Holders 69
SECTION 9.02. With Consent of Holders 69
SECTION 9.03. Revocation and Effect of Consent 71
SECTION 9.04. Notation on or Exchange of Notes 71
SECTION 9.05. Trustee to Sign Amendments, Etc. 71
SECTION 9.06. Conformity with Trust Indenture Act 72
ARTICLE TEN
Subordination of Notes
SECTION 10.01. Notes Subordinated to Senior
Indebtedness 72
SECTION 10.02. No Payment on Notes in Certain
Circumstances 72
SECTION 10.03. Payment over Proceeds upon Dissolution,
Etc. 73
SECTION 10.04. Subrogation 75
SECTION 10.05. Obligations of Company
Unconditional 76
SECTION 10.06. Notice to Trustee 76
SECTION 10.07. Reliance on Judicial Order or
Certificate of Liquidating
Agent 77
SECTION 10.08. Trustee's Relation to Senior
Indebtedness 78
SECTION 10.09. Subordination Rights Not Impaired by
Acts or Omissions of the Company or
Holders of Senior Indebtedness 78
SECTION 10.10. Holders Authorize Trustee to
Effectuate Subordination of
Notes 78
SECTION 10.11. Not to Prevent Events of Default 79
SECTION 10.12. Trustee's Compensation Not
Prejudiced 79
SECTION 10.13. No Waiver of Subordination
Provisions 79
SECTION 10.14. Payments May Be Paid Prior to
Dissolution 79
SECTION 10.15. Trust Moneys Not Subordinated 79
<PAGE>
ARTICLE ELEVEN
Miscellaneous
SECTION 11.01. Trust Indenture Act of 1939 80
SECTION 11.02. Notices 80
SECTION 11.03. Certificate and Opinion as to
Conditions Precedent 81
SECTION 11.04. Statements Required in Certificate
or Opinion 81
SECTION 11.05. Acts of Holders 81
SECTION 11.06. Rules by Trustee, Paying Agent or
Registrar 82
SECTION 11.07. Payment Date Other Than a
Business Day 83
SECTION 11.08. Governing Law 83
SECTION 11.09. No Adverse Interpretation of Other
Agreements 83
SECTION 11.10. No Recourse Against Others 83
SECTION 11.11. Successors 83
SECTION 11.12. Duplicate Originals 83
SECTION 11.13. Separability 84
SECTION 11.14. Table of Contents, Headings, Etc. 84
SIGNATURES S-1
EXHIBIT A - Form of Note A-1
EXHIBIT B - Form of Certificate B-1
EXHIBIT C - Form of Certificate to Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors C-1
EXHIBIT D - Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to
Regulation S D-1
<PAGE>
INDENTURE, dated as of May 10, 1996, between MOOG INC.,
a New York corporation, as Issuer (the "Company"), and Fleet
National Bank, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of up to
$120,000,000 aggregate principal amount of the Company's 10%
Senior Subordinated Notes due 2006 (the "Notes") issuable as
provided in this Indenture. All things necessary to make this
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, when executed by the Company and
authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company as
hereinafter provided.
This Indenture is subject to, and shall be governed by,
the provisions of the Trust Indenture Act of 1939, as amended,
that are required to be a part of and to govern indentures
qualified under the Trust Indenture Act of 1939, as amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the
purchase of the Notes by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of
all Holders, as follows.
ARTICLE ONE
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acceleration Notice" has the meaning specified in
Section 6.02.
"Adjusted Consolidated Net Income" means, for any
period, the aggregate net income (or loss) of the Company and its
Restricted Subsidiaries for such period determined in conformity
with GAAP; provided that the following items shall be excluded in
computing Adjusted Consolidated Net Income (without duplication):
(i) the net income of any Person (other than net income
attributable to a Restricted Subsidiary) in which any Person
(other than the Company or any of its Restricted Subsidiaries)
has an ownership interest and the net income of any Unrestricted
Subsidiary, except, in each case, to the extent of the amount of
dividends or other distributions actually paid to the Company or
any of its Restricted Subsidiaries by such other Person or such
Unrestricted Subsidiary during such period; (ii) solely for the
purposes of calculating the amount of Restricted Payments that
may be made pursuant to clause (C) of the first paragraph of
Section 4.05 (and in such case, except to the extent includable
<PAGE>
pursuant to clause (i) above), the net income (or loss) of any
Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with the Company or
any of its Restricted Subsidiaries or all or substantially all of
the property and assets of such Person are acquired by the
Company or any of its Restricted Subsidiaries; (iii) the net
income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by
such Restricted Subsidiary of such net income is not at the time
permitted by the operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis) attributable to
Asset Sales; (v) except for purposes of calculating the amount of
Restricted Payments that may be made pursuant to clause (C) of
the first paragraph of Section 4.05, any amount paid or accrued
as dividends on Preferred Stock of the Company or any Restricted
Subsidiary owned by Persons other than the Company and any of its
Restricted Subsidiaries; and (vi) all extraordinary gains and
extraordinary losses.
"Affiliate" means, as applied to any Person, any other
Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person. For
purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" means any Registrar, Paying Agent or
authenticating agent.
"Agent Members" has the meaning provided in Section
2.07(a).
"Asset Acquisition" means (i) an investment by the
Company or any of its Restricted Subsidiaries in any other Person
pursuant to which such Person shall become a Restricted
Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries; provided that such
Person's primary business is related, ancillary or complementary
to the businesses of the Company and its Restricted Subsidiaries
on the date of such investment or (ii) an acquisition by the
Company or any of its Restricted Subsidiaries of the property and
assets of any Person other than the Company or any of its
Restricted Subsidiaries that constitute substantially all of a
division or line of business of such Person; provided that the
property and assets acquired are related, ancillary or
complementary to the businesses of the Company and its Restricted
Subsidiaries on the date of such acquisition.
"Asset Disposition" means the sale or other disposition
by the Company or any of its Restricted Subsidiaries (other than
to the Company or another Restricted Subsidiary) of (i) all or
<PAGE>
substantially all of the Capital Stock of any Restricted
Subsidiary of the Company or (ii) all or substantially all of the
assets that constitute a division or line of business of the
Company or any of its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other
disposition (including by way of merger, consolidation or sale-
leaseback transaction) in one transaction or a series of related
transactions by the Company or any of its Restricted Subsidiaries
to any Person other than the Company or any of its Restricted
Subsidiaries of (i) all or any of the Capital Stock of any
Restricted Subsidiary, (ii) all or substantially all of the
property and assets of an operating unit or business of the
Company or any of its Restricted Subsidiaries or (iii) any other
property and assets of the Company or any of its Restricted
Subsidiaries outside the ordinary course of business of the
Company or such Restricted Subsidiary and, in each case, that is
not governed by the provisions of Article Five; provided that
"Asset Sale" shall not include sales or other dispositions of
inventory, receivables and other current assets.
"Average Life" means, at any date of determination with
respect to any debt security, the quotient obtained by dividing
(i) the sum of the products of (a) the number of
years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and
(b) the amount of such principal payment by (ii) the sum of all
such principal payments.
"Board of Directors" means the Board of Directors of
the Company or any committee of such Board of Directors duly
authorized to act under this Indenture.
"Board Resolution" means a copy of a resolution,
certified by the Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in The City of New York,
or in the city of the Corporate Trust Office of the Trustee, are
authorized by law to close.
"Capital Stock" means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) in equity of
such Person, whether now outstanding or issued after the Closing
Date, including, without limitation, all Common Stock and
Preferred Stock.
"Capitalized Lease" means, as applied to any Person,
any lease of any property (whether real, personal or mixed) of
which the discounted present value of the rental obligations of
such Person as lessee, in conformity with GAAP, is required to be
capitalized on the balance sheet of such Person; and "Capitalized
<PAGE>
Lease Obligation" means the discounted present value of the
rental obligations under such lease.
"Cash Equivalents" means (i) any evidence of
Indebtedness, maturing not more than 90 days after the date of
issuance, issued by the United States of America or an
instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of
America, or (ii) commercial paper, maturing not more than 90 days
from the date of issue, which is issued by a corporation (other
than an Affiliate of the Company) organized under the laws of any
state of the United States or of the District of Columbia and
rated A-1 by S&P or P-1 by Moody's.
"Change of Control" means such time as (i) a "person"
or "group" (within the meaning of Sections 13(d) and 14(d)(2) of
the Exchange Act), other than the Existing Stockholders, becomes
the ultimate "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act) of Voting Stock representing more than 35% of
the total voting power of the total Voting Stock of the Company
on a fully diluted basis, and such ownership is greater than the
total voting power of the Voting Stock of the Company held by the
Existing Stockholders and their Affiliates; or (ii) individuals
who on the Original Closing Date constitute the Board of
Directors (together with any new directors whose election by the
Board of Directors or whose nomination for election by the
Company's stockholders was approved by a vote of at least two-
thirds of the members of the Board of Directors then in office
who either were members of the Board of Directors on the Original
Closing Date or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office.
"Closing Date" means the date on which up to
$100,000,000 aggregate principal amount of the Notes are
originally issued under this Indenture; provided, however, that
if up to an additional $20,000,000 aggregate principal amount of
Notes are issued hereunder on or before May 17, 1996, "Closing
Date" shall mean the date on which such additional Notes are
originally issued hereunder.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Stock" means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated, whether voting or non-voting) of such
Person's common stock, whether now outstanding or issued after
the date of this Indenture, including, without limitation, all
series and classes of such common stock.
<PAGE>
"Company" means the party named as such in this
Indenture until a successor replaces it pursuant to Article Five
of this Indenture and thereafter means the successor.
"Company Order" means a written request or order signed
in the name of the Company (i) by its Chairman, a Vice Chairman,
its President or a Vice President and (ii) by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee; provided, however, that such written
request or order may be signed by any two of the Persons listed
in clause (i) above in lieu of being signed by one of such
Persons listed in such clause (i) and one of the officers listed
in clause (ii) above.
"Consolidated EBITDA" means, for any period, the sum of
the amounts for such period of (i) Adjusted Consolidated Net
Income, (ii) Consolidated Interest Expense, to the extent such
amount was deducted in calculating Adjusted Consolidated Net
Income, (iii) income taxes, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income (other
than income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or sales of
assets), (iv) depreciation expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income, (v)
amortization expense, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income, and (vi) all other
non-cash items reducing Adjusted Consolidated Net Income (other
than items that will require cash payments and for which an
accrual or reserve is, or is required by GAAP to be, made), less
all non-cash items increasing Adjusted Consolidated Net Income,
all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP; provided that,
if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced (to the extent
not otherwise reduced in accordance with GAAP) by an amount equal
to (A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by (B) the
quotient of (1) the number of shares of outstanding Common Stock
of such Restricted Subsidiary not owned on the last day of such
period by the Company or any of its Restricted Subsidiaries
divided by (2) the total number of shares of outstanding Common
Stock of such Restricted Subsidiary on the last day of such
period.
"Consolidated Interest Expense" means, for any period
(without duplication), the aggregate amount of interest in
respect of Indebtedness (including amortization of original issue
discount on any Indebtedness and the interest portion of any
deferred payment obligation, calculated in accordance with the
effective interest method of accounting; all commissions,
discounts and other fees and charges owed with respect to letters
of credit, bankers' acceptance financings and other financings;
the net costs associated with Interest Rate Agreements; interest
in respect of Indebtedness that is Guaranteed or secured by the
Company or any of its Restricted Subsidiaries; interest in
respect of Indebtedness consisting of the Company's obligations
under the Supplemental Plan which, for any period, shall be
<PAGE>
computed at a rate per annum equal to the weighted average of the
rates of interest borne by all other Indebtedness of the Company
and its Restricted Subsidiaries for such period); and the
interest component of Capitalized Lease Obligations paid, accrued
or scheduled to be paid or to be accrued by the Company and its
Restricted Subsidiaries during such period; excluding, however,
(i) any amount of such interest of any Restricted Subsidiary if
the net income of such Restricted Subsidiary is excluded in the
calculation of Adjusted Consolidated Net Income pursuant to
clause (iii) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is
excluded from the calculation of Adjusted Consolidated Net Income
pursuant to clause (iii) of the definition thereof), (ii) any
amount of such interest expense of any Restricted Subsidiary that
is not a Wholly Owned Restricted Subsidiary if the Adjusted
Consolidated Net Income of such Restricted Subsidiary is excluded
in the calculation of Consolidated EBITDA pursuant to the proviso
at the end of the definition thereof (but only in the same
proportion as the Adjusted Consolidated Net Income of such
Restricted Subsidiary is excluded from the calculation of
Consolidated EBITDA pursuant to the proviso at the end of the
definition thereof) and (iii) any premiums, fees and expenses
(and any amortization thereof) payable in connection with the
Recapitalization, all as determined on a consolidated basis
(without taking into account Unrestricted Subsidiaries) in
conformity with GAAP.
"Consolidated Tangible Net Worth" means, at any date of
determination, stockholders' equity as set forth on the most
recently available quarterly or annual consolidated balance sheet
of the Company and its Restricted Subsidiaries (which shall be as
of a date not more than 90 days prior to the date of such
computation, and which shall not take into account Unrestricted
Subsidiaries), less any amounts attributable to Redeemable Stock
or any equity security convertible into or exchangeable for
Indebtedness, the cost of treasury stock and the principal amount
of any promissory notes receivable from the sale of the Capital
Stock of the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with GAAP (excluding the
effects of foreign currency exchange adjustments under Financial
Accounting Standards Board Statement of Financial Accounting
Standards No. 52).
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date of this Indenture, located at 777 Main
Street, Hartford, Connecticut 06115, Attention: Corporate Trust
Department and for purposes of Section 2.04 and 4.02 hereof is
located at 40 Broad Street, 9th Floor, New York, New York 10004.
"Credit Agreement" means the credit agreement dated
June 15, 1994, as amended as of November 14, 1995 and March 22,
1996, among the Company, the lenders named therein, and Marine
Midland Bank, as agent, together with all other agreements,
instruments and documents executed or delivered pursuant thereto
or in connection therewith, as such credit agreement, other
<PAGE>
agreements, instruments or documents may be amended,
supplemented, extended, renewed, replaced or otherwise modified
from time to time by one or more other agreements, instruments
and documents entered into with such Persons and/or other
Persons; provided, that a particular agreement (together with its
related agreements, instruments and documents) shall constitute
all or a portion of the Credit Agreement under this Indenture
only if a notice to that effect is delivered by the Company to
the Trustee.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar agreement or
arrangement designed to protect the Company or any of its
Restricted Subsidiaries against fluctuations in currency values
to or under which the Company or any of its Restricted
Subsidiaries is a party or a beneficiary on the date of this
Indenture or becomes a party or a beneficiary thereafter.
"Default" means any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its
nominees, and their respective successors until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder.
"Designated Senior Indebtedness" means (i) Indebtedness
and all other monetary obligations (including expenses, fees and
other monetary obligations) under the Credit Agreement and (ii)
any other Indebtedness constituting Senior Indebtedness that, at
any date of determination, has an aggregate principal amount
outstanding of at least $25 million and is specifically
designated by the Company in the instrument creating or
evidencing such Senior Indebtedness as "Designated Senior
Indebtedness."
"Event of Default" has the meaning provided in Section
6.01.
"Excess Proceeds" has the meaning provided in
Section 4.09.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchange Notes" means any securities of the Company
containing terms identical to the Notes (except that such
Exchange Notes (i) shall be registered under the Securities Act
and (ii) shall have an interest rate equal to 10% per annum,
without provision for adjustment as provided in the fourth
paragraph of Section 1 of the Notes) that are issued and
exchanged for the Notes pursuant to the Registration Rights
Agreement and this Indenture.
<PAGE>
"Existing Stockholders" means (i) the Persons from time
to time parties to the Moog Family Agreement as to Voting dated
September, 1982, as amended February 26, 1988, (ii) the Moog Inc.
Retirement Plan Trust and (iii) the Moog Inc. Savings and Stock
Ownership Plan Trust.
"Fair Market Value" means the price that would be paid
in an arm's-length transaction between an informed and willing
seller under no compulsion to sell and an informed and willing
buyer under no compulsion to buy, as determined in good faith by
(i) senior management of the Company if the aggregate amount of
the transaction with respect to which Fair Market Value is being
determined does not exceed $10 million in value, or (ii) the
Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution, if the aggregate amount of the
transaction with respect to which Fair Market Value is being
determined exceeds $10 million in value.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect as of the Original
Closing Date, including, without limitation, those set forth in
the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity
as approved by a significant segment of the accounting
profession. All ratios and computations contained or referred to
in this Indenture shall be computed in conformity with GAAP
applied on a consistent basis, except that calculations made for
purposes of determining compliance with the terms of the
covenants and with other provisions of this Indenture shall be
made without giving effect to (i) the amortization of any
expenses incurred in connection with the offering of the Notes
and (ii) except as otherwise provided, the amortization of any
amounts required or permitted by Accounting Principles Board
Opinion Nos. 16 and 17.
"Global Notes" has the meaning provided in Section
2.01.
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct
or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business.
The term "Guarantee" used as a verb has a corresponding meaning.
<PAGE>
"Holder" means the registered holder of any Note.
"Incur" means, with respect to any Indebtedness, to
incur, create, issue, assume, Guarantee or otherwise become
liable for or with respect to, or become responsible for, the
payment of, contingently or otherwise, such Indebtedness,
including an "Incurrence" of Indebtedness by reason of a Person
becoming a Restricted Subsidiary of the Company; provided that
neither the accrual of interest nor the accretion of original
issue discount shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any
date of determination (without duplication), (i) all indebtedness
of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person in respect of
letters of credit or other similar instruments (including
reimbursement obligations with respect thereto) other than with
respect to the Company and its Restricted Subsidiaries letters of
credit issued in the ordinary course of business and not
exceeding $8 million outstanding at any time, (iv) all
obligations of such Person to pay the deferred and unpaid
purchase price of property or services, which purchase price is
due more than six months after the date of placing such property
in service or taking delivery and title thereto or the completion
of such services, except Trade Payables, (v) all obligations of
such Person as lessee under Capitalized Leases, (vi) all
Indebtedness of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such
Person; provided that the amount of such Indebtedness shall be
the lesser of (A) the Fair Market Value of such asset at such
date of determination and (B) the amount of such Indebtedness,
(vii) all Indebtedness of other Persons Guaranteed by such Person
to the extent such Indebtedness is Guaranteed by such Person,
(viii) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate
Agreements and (ix) with respect to the Company, all obligations
pursuant to the Supplemental Plan. The amount of Indebtedness of
any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability
upon the occurrence of the contingency giving rise to the
obligation, provided (A) that the amount outstanding at any time
of any Indebtedness issued with original issue discount is the
face amount of such Indebtedness and (B) that Indebtedness shall
not include any liability for federal, state, local or other
taxes.
"Indenture" means this Indenture as originally executed
or as it may be amended or supplemented from time to time by one
or more indentures supplemental to this Indenture entered into
pursuant to the applicable provisions of this Indenture.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as that term is
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
<PAGE>
"Interest Coverage Ratio" means, on any Transaction
Date, the ratio of (i) the aggregate amount of Consolidated
EBITDA for the then most recent four fiscal quarters prior to
such Transaction Date for which reports have been filed with the
Commission pursuant to Section 4.16 hereof (the "Four Quarter
Period") to (ii) the aggregate Consolidated Interest Expense
during such Four Quarter Period. In making the foregoing
calculation, (A) pro forma effect shall be given to any
Indebtedness Incurred or repaid during the period (the "Reference
Period") commencing on the first day of the Four Quarter Period
and ending on the Transaction Date (other than Indebtedness
Incurred or repaid under a revolving credit or similar
arrangement to the extent of the commitment thereunder (or under
any predecessor revolving credit or similar arrangement) in
effect on the last day of such Four Quarter Period, adjusted,
however, to give pro forma effect to (x) repayments resulting
from the reduction in such commitment or Indebtedness Incurred in
excess of such commitment, in each case after the end of such
Four Quarter Period and on or before the Transaction Date, and
(y) Indebtedness projected, in the reasonable judgment of the
senior management of the Company, to remain outstanding for a
period in excess of 12 months from the date of the Incurrence
thereof), in each case as if such Indebtedness had been Incurred
or repaid on the first day of such Reference Period;
(B) Consolidated Interest Expense attributable to interest on any
Indebtedness (whether existing or being Incurred) computed on a
pro forma basis and bearing a floating interest rate shall be
computed as if the rate in effect on the Transaction Date (taking
into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term
in excess of 12 months or, if shorter, at least equal to the
remaining term of such Indebtedness) had been the applicable rate
for the entire Reference Period; (C) pro forma effect shall be
given to Asset Dispositions and Asset Acquisitions (including
giving pro forma effect to the application of proceeds of any
Asset Disposition) that occur during such Reference Period as if
they had occurred and such proceeds had been applied on the first
day of such Reference Period; and (D) pro forma effect shall be
given to asset dispositions and asset acquisitions (including
giving pro forma effect to the application of proceeds of any
asset disposition) that have been made by any Person that has
become a Restricted Subsidiary or has been merged with or into
the Company or any Restricted Subsidiary during such Reference
Period and that would have constituted Asset Dispositions or
Asset Acquisitions had such transactions occurred when such
Person was a Restricted Subsidiary as if such asset dispositions
or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference
Period; provided that to the extent that clause (C) or (D) of
this sentence requires that pro forma effect be given to an asset
acquisition or asset disposition, such pro forma calculation
shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date of the Person, or division or line
of business of the Person, that is acquired or disposed for which
financial information is available; and provided further that to
the extent that clause (C) or (D) of this sentence requires that
pro forma effect be given to an asset acquisition, such pro forma
<PAGE>
calculation shall exclude any expense (net of any expense
increase) which, in the good faith estimate of management, will
(in accordance with GAAP and the rules, regulations and
guidelines of the Commission) be eliminated as a result of such
acquisition.
"Interest Payment Date" means each semiannual interest
payment date on May 1 and November 1 of each year, commencing
November 1, 1996.
"Interest Rate Agreement" means any interest rate
protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, interest rate
hedge agreement or other similar agreement or arrangement
designed to protect the Company or any of its Restricted
Subsidiaries against fluctuations in interest rates to or under
which the Company or any of its Restricted Subsidiaries is a
party or a beneficiary on the date of this Indenture or becomes a
party or a beneficiary hereafter.
"Investment" in any person means any direct or indirect
advance, loan or other extension of credit (including, without
limitation, by way of Guarantee or similar arrangement; but
excluding advances to customers in the ordinary course of
business that are, in conformity with GAAP, recorded as accounts
receivable on the balance sheet of the Company or its Restricted
Subsidiaries) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any
purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person
and shall include (i) the designation of a Restricted Subsidiary
as an Unrestricted Subsidiary and (ii) the Fair Market Value of
the Capital Stock (or any other Investment) held by the Company
or any of its Restricted Subsidiaries, of (or in) any Person that
has ceased to be a Restricted Subsidiary. For purposes of the
definition of "Unrestricted Subsidiary" and Section 4.05, (i)
"Investment" shall include the Fair Market Value of the assets
(net of liabilities (other than liabilities to the Company or any
of its Restricted Subsidiaries)) of any Restricted Subsidiary at
the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary, (ii) the Fair Market Value of the assets
(net of liabilities (other than liabilities to the Company or any
of its Restricted Subsidiaries)) of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary shall be considered a reduction in
outstanding Investments and (iii) any property transferred to or
from an Unrestricted Subsidiary shall be valued at its Fair
Market Value at the time of such transfer.
"Lender Agent" means the agent or agents, as the case
may be, for the lenders from time to time party to the Credit
Agreement as notified in writing by the Company to the Trustee
from time to time and which is initially Marine Midland Bank.
<PAGE>
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without
limitation, any conditional sale or other title retention
agreement or lease in the nature thereof, any sale with recourse
against the seller or any Affiliate of the seller, or any
agreement to give any security interest).
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, (a) with respect to any
Asset Sale, the proceeds of such Asset Sale in the form of cash
or Cash Equivalents, including payments in respect of deferred
payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in
the form of cash or Cash Equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or
any Restricted Subsidiary) and proceeds from the conversion of
other property received when converted to cash or Cash
Equivalents, net of (i) brokerage commissions and other fees and
expenses (including fees and expenses of counsel and investment
bankers) related to such Asset Sale, (ii) provisions for all
taxes (whether or not such taxes will actually be paid or are
payable) as a result of such Asset Sale without regard to the
consolidated results of operations of the Company and its
Restricted Subsidiaries, taken as a whole, (iii) payments made to
repay Indebtedness or any other obligation outstanding at the
time of such Asset Sale that either (A) is secured by a Lien on
the property or assets sold or (B) is required to be paid as a
result of such sale and (iv) appropriate amounts to be provided
by the Company or any Restricted Subsidiary of the Company as a
reserve against any liabilities associated with such Asset Sale,
including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters
and liabilities under any indemnification obligations associated
with such Asset Sale, all as determined in conformity with GAAP
and (b) with respect to any issuance or sale of Capital Stock,
the proceeds of such issuance or sale in the form of cash or Cash
Equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but
not interest, component thereof) when received in the form of
cash or Cash Equivalents (except to the extent such obligations
are financed or sold with recourse to the Company or any
Restricted Subsidiary of the Company) and proceeds from the
conversion of other property received when converted to cash or
Cash Equivalents, net of attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions
and brokerage, consultant and other fees incurred in connection
with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Non-U.S. Person" means a person who is not a U.S.
person, as defined in Regulation S.
<page.
"Notes" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated
and delivered under this Indenture. For all purposes of this
Indenture, the term "Notes" shall include any Exchange Notes to
be issued and exchanged for any Notes pursuant to the
Registration Rights Agreement and this Indenture and, for
purposes of this Indenture, all Notes and Exchange Notes shall
vote together as one series of Notes under this Indenture.
"Offer to Purchase" means an offer to purchase Notes by
the Company from the Holders commenced by mailing a notice to the
Trustee and each Holder stating: (i) the covenant of this
Indenture pursuant to which the offer is being made and that all
Notes validly tendered will be accepted for payment on a pro rata
basis; (ii) the purchase price and the date of purchase (which
shall be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed) (the "Payment Date");
(iii) that any Note not tendered will continue to accrue interest
pursuant to its terms; (iv) that, unless the Company defaults in
the payment of the purchase price, any Note accepted for payment
pursuant to the Offer to Purchase shall cease to accrue interest
on and after the Payment Date; (v) that Holders electing to have
a Note purchased pursuant to the Offer to Purchase will be
required to surrender the Note, together with the form entitled
"Option of the Holder to Elect Purchase" on the reverse side of
the Note completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date; (vi) that Holders will be
entitled to withdraw their election if the Paying Agent receives,
not later than the close of business on the third Business Day
immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Notes delivered for purchase and a statement
that such Holder is withdrawing his election to have such Notes
purchased; and (vii) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered; provided
that each Note purchased and each new Note issued shall be in a
principal amount of $1,000 or integral multiples thereof. On the
Payment Date, the Company shall (i) accept for payment on a pro
rata basis Notes or portions thereof tendered pursuant to an
Offer to Purchase; (ii) deposit with the Paying Agent by 11:00
a.m., New York time, in immediately available funds, money
sufficient to pay the purchase price of all Notes or portions
thereof so accepted; and (iii) deliver, or cause to be delivered,
to the Trustee all Notes or portions thereof so accepted together
with an Officers' Certificate specifying the Notes or portions
thereof accepted for payment by the Company. The Paying Agent
shall promptly mail to the Holders of Notes so accepted for
payment an amount equal to the purchase price, and the Trustee
shall promptly authenticate and mail to such Holders a new Note
equal in principal amount to any unpurchased portion of the Note
surrendered; provided that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or integral
multiples thereof. The Company will publicly announce the
results of an Offer to Purchase as soon as practicable after the
Payment Date. The Trustee shall act as the Paying Agent for an
<PAGE>
Offer to Purchase. The Company will comply with Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are
applicable, in the event that the Company is required to
repurchase Notes pursuant to an Offer to Purchase.
"Officer" means, with respect to the Company, (i) the
Chairman of the Board, the President, any Vice President, the
Chief Financial Officer, and (ii) the Treasurer or any Assistant
Treasurer, or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by
one Officer listed in clause (i) of the definition thereof and
one Officer listed in clause (ii) of the definition thereof.
Each Officers' Certificate (other than certificates provided
pursuant to TIA Section 314(a)(4)) shall include the statements
provided for in TIA Section 314(e).
"Offshore Global Note" has the meaning provided in
Section 2.01.
"Offshore Physical Notes" has the meaning provided in
Section 2.01.
"Opinion of Counsel" means a written opinion signed by
legal counsel who is reasonably acceptable to the Trustee. Such
counsel may be an employee of or counsel to the Company or the
Trustee. Each such Opinion of Counsel shall include the
statements provided for in TIA Section 314(e). Opinions of
Counsel required to be delivered may have qualifications
customary for opinions of the type required.
"Original Closing Date" means the date on which up to
$100,000,000 aggregate principal amount of the Notes are
originally issued under this Indenture.
"Paying Agent" has the meaning provided in
Section 2.04, except that, for the purposes of Article Eight, the
Paying Agent shall not be the Company or a Subsidiary of the
Company or an Affiliate of any of them. The term "Paying Agent"
includes any additional Paying Agent.
"Payment Blockage Period" has the meaning provided in
Section 10.02.
"Permitted Investment" means (i) an Investment in the
Company or a Restricted Subsidiary or a Person which will, upon
the making of such Investment, become a Restricted Subsidiary or
be merged or consolidated with or into or transfer or convey all
or substantially all its assets to, the Company or a Restricted
Subsidiary; provided that such Person's primary business is
related, ancillary or complementary to the businesses of the
Company and its Restricted Subsidiaries on the date of such
Investment; (ii) a Temporary Cash Investment; (iii) payroll,
travel and similar advances to cover matters that are expected at
the time of such advances ultimately to be treated as expenses in
accordance with GAAP; (iv) loans or advances to employees made in
<PAGE>
the ordinary course of business in accordance with the past
practice of the Company or its Restricted Subsidiaries and that
do not in the aggregate exceed $2 million at any time
outstanding; and (v) stock, obligations or securities received in
satisfaction of judgments or in settlements.
"Person" means an individual, a corporation, a
partnership, a limited liability company, an association, a trust
or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
"Physical Notes" has the meaning provided in Section
2.01.
"Preferred Stock" means, with respect to any Person,
any and all shares, interests, participations or other
equivalents (however designated, whether voting or non-voting) of
such Person's preferred or preference stock, whether now
outstanding or issued after the date of this Indenture,
including, without limitation, all series and classes of such
preferred or preference stock.
"Private Placement Legend" means the legend initially
set forth on the Notes in the form set forth in Section 2.02.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Redeemable Stock" means any class or series of Capital
Stock of any Person that by its terms or otherwise is
(i) required to be redeemed prior to the Stated Maturity of the
Notes, (ii) redeemable at the option of the holder of such class
or series of Capital Stock at any time prior to the Stated
Maturity of the Notes or (iii) convertible into or exchangeable
for Capital Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Stated
Maturity of the Notes; provided that any Capital Stock that would
not constitute Redeemable Stock but for provisions thereof giving
holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the Stated Maturity of
the Notes shall not constitute Redeemable Stock if the "asset
sale" or "change of control" provisions applicable to such
Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained in Sections 4.09 and
4.10 and such Capital Stock specifically provides that such
Person will not repurchase or redeem any such stock pursuant to
such provision prior to the Company's repurchase of such Notes as
are required to be repurchased pursuant to the provisions of
Sections 4.09 and 4.10.
"Redemption Date", when used with respect to any Note
to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
<PAGE>
"Redemption Price", when used with respect to any Note
to be redeemed, means the price at which such Note is to be
redeemed pursuant to this Indenture.
"Registrar" has the meaning provided in Section 2.04.
"Registration" means the commencement of an exchange
offer or the effectiveness of a shelf registration statement
relating to the Notes.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of May 10, 1996, between the Company
and _________________________________.
"Registration Statement" means the Registration
Statement as defined and described in the Registration Rights
Agreement.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the April 15 or October 15 (whether
or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Regulation S" means Regulation S under the Securities
Act.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice chairman of the board of
directors, the chairman or any vice chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Payments" has the meaning provided in
Section 4.05.
"Restricted Subsidiary" means any Subsidiary of the
Company other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security Register" has the meaning provided in Section
2.04.
<PAGE>
"Senior Indebtedness" means the following obligations
of the Company, whether outstanding on the Original Closing Date
or thereafter Incurred: (i) all Indebtedness and all other
monetary obligations (including, without limitation, expenses,
fees, claims, indemnifications, reimbursements, liabilities and
other monetary obligations) of the Company under the Credit
Agreement, (ii) Indebtedness of the Company pursuant to the
Supplemental Plan, and (iii) all other Indebtedness of the
Company (other than the Notes), including principal and interest
on such Indebtedness, unless such Indebtedness, by its terms or
by the terms of any agreement or instrument pursuant to which
such Indebtedness is issued, is pari passu with, or subordinated
in right of payment to, the Notes; provided that the term "Senior
Indebtedness" shall not include (a) any Indebtedness of the
Company that, when Incurred and without respect to any election
under Section 1111(b) of the United States Bankruptcy Code, was
without recourse to the Company, (b) any Indebtedness of the
Company to any of its Subsidiaries or to a joint venture in which
the Company has an interest, (c) any Indebtedness of the Company
not permitted by Section 4.03, (d) any repurchase, redemption or
other obligation in respect of Redeemable Stock, (e) any
Indebtedness of the Company to any employee, officer or director
of the Company or any of its Subsidiaries, (f) any liability for
federal, state, local or other taxes owed or owing by the
Company, (g) any Trade Payables of the Company or (h) any
Indebtedness of the Company described in clause (ii) of this
definition to the extent such Indebtedness exceeds $10 million.
Senior Indebtedness will also include interest accruing
subsequent to events of bankruptcy of the Company and its
Subsidiaries at the rate provided for in the document governing
such Senior Indebtedness, whether or not such interest is an
allowed claim enforceable against the debtor in a bankruptcy case
under federal bankruptcy law or similar laws relating to
insolvency.
"Senior Subordinated Obligations" means any principal
of, premium, if any, or interest on the Notes payable pursuant to
the terms of the Notes or upon acceleration, including any
amounts received upon the exercise of rights of rescission or
other rights of action (including claims for damages) or
otherwise, to the extent relating to the purchase price of the
Notes or amounts corresponding to such principal, premium, if
any, or interest on the Notes.
"S&P" means Standard and Poor's Ratings Group and its
successors.
"Stated Maturity" means, (i) with respect to any debt
security, the date specified in such debt security as the fixed
date on which the final installment of principal of such debt
security is due and payable and (ii) with respect to any
scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed
date on which such installment is due and payable.
<PAGE>
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more
than 50% of the voting power of the outstanding Voting Stock is
owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Supplemental Plan" means, collectively, the Moog Inc.
Supplemental Retirement Plan and the Moog Inc. Supplemental
Retirement Plan Trust, in each case, as in effect on the Original
Closing Date or as may be amended from time to time with the
approval of a majority of the disinterested members of the Board
of Directors.
"Temporary Cash Investment" means any of the following:
(i) direct obligations of the United States of America or any
agency thereof or obligations fully and unconditionally
guaranteed by the United States of America or any agency thereof,
(ii) time deposit accounts, certificates of deposit and money
market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any
state thereof, Taiwan or any foreign country recognized by the
United States, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50
million (or the foreign currency equivalent thereof) and has
outstanding debt which is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor,
(iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications
described in clause (ii) above, (iv) commercial paper, maturing
not more than 90 days after the date of acquisition, issued by a
corporation (other than an Affiliate of the Company) organized
and in existence under the laws of the United States of America,
any state thereof, Taiwan or any foreign country recognized by
the United States of America with a rating at the time as of
which any investment therein is made of "P-1" (or higher)
according to Moody's or "A-1" (or higher) according to S&P, and
(v) securities with maturities of two years or less from the date
of acquisition issued or fully and unconditionally guaranteed by
any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority
thereof, and rated at least "A" by S&P or Moody's.
"TIA" or "Trust Indenture Act" means the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-
77bbb), as in effect on the date this Indenture was executed,
except as provided in Section 9.06.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation
to trade creditors created, assumed or Guaranteed by such Person
or any of its Subsidiaries arising in the ordinary course of
business in connection with the acquisition of goods or services.
<PAGE>
"Transaction Date" means, with respect to the
Incurrence of any Indebtedness by the Company or any of its
Restricted Subsidiaries, the date such Indebtedness is to be
Incurred and, with respect to any Restricted Payment, the date
such Restricted Payment is to be made.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor replaces it in
accordance with the provisions of Article Seven of this Indenture
and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy
Reform Act of 1978, as amended and as codified in Title 11 of the
United States Code, as amended from time to time hereafter, or
any successor federal bankruptcy law.
"Unrestricted Subsidiary" means (i) any Subsidiary of
the Company that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors in the
manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Restricted
Subsidiary (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or
holds any Lien on any property of, the Company or any Restricted
Subsidiary; provided that (A) any Guarantee by the Company or any
Restricted Subsidiary of any Indebtedness of the Subsidiary being
so designated shall be deemed an "Incurrence" of such
Indebtedness by the Company or such Restricted Subsidiary (or
both, if applicable) at the time of such designation; (B) either
(I) the Subsidiary to be so designated has total assets of $1,000
or less or (II) if such Subsidiary has assets greater than
$1,000, that such designation would be permitted under Section
4.05 and (C) if applicable, the Incurrence of Indebtedness
referred to in clause (A) of this proviso would be permitted
under Section 4.03. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that immediately after giving effect to such designation (x) the
Company could Incur $1.00 of additional Indebtedness under
Section 4.03(a) and (y) no Default or Event of Default shall have
occurred and be continuing. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that
such designation complied with the foregoing provisions.
"U.S. Global Note" has the meaning provided in Section
2.01.
"U.S. Government Obligations" means securities that are
(i) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the
<PAGE>
issuer thereof at any time prior to the Stated Maturity of the
Notes, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"U.S. Physical Notes" has the meaning provided in
Section 2.01.
"Voting Stock" means, with respect to any Person,
Capital Stock of any class or kind ordinarily having the power to
vote for the election of directors, managers or other voting
members of the governing body of such Person.
"Wholly Owned" means, with respect to any Subsidiary of
any Person, the ownership of all of the outstanding Capital Stock
of such Subsidiary (other than any director's qualifying shares
or Investments by foreign nationals mandated by applicable law)
by such Person or one or more Wholly Owned Subsidiaries of such
Person.
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a provision of
the TIA, the provision is incorporated by reference in and made a
part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the indenture securities means the Company
or any other obligor on the Notes.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by a rule of the Commission and not otherwise defined
herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction. Unless the
context otherwise requires:
(i) a term has the meaning assigned to it;
<PAGE>
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and
words in the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(vii) all ratios and computations based on GAAP
contained in this Indenture shall be computed in accordance
with the definition of GAAP set forth in Section 1.01; and
(viii) all references to Sections or Articles refer
to Sections or Articles of this Indenture unless otherwise
indicated.
ARTICLE TWO
The Notes
SECTION 2.01. Form and Dating. The Notes and the
Trustee's certificate of authentication shall be substantially in
the form annexed hereto as Exhibit A. The Notes may have
notations, legends or endorsements required by law, stock
exchange agreements to which the Company is subject or usage.
The Company shall approve the form of the Notes and any notation,
legend or endorsement on the Notes. Each Note shall be dated the
date of its authentication.
The terms and provisions contained in the form of the
Notes annexed hereto as Exhibit A shall constitute, and are
hereby expressly made, a part of this Indenture. To the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall
be issued initially in the form of a single permanent global Note
in registered form, substantially in the form set forth in
Exhibit A (the "U.S. Global Note"), deposited with the Trustee,
as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the U.S. Global Note may from time
to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
<PAGE>
Notes offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of
a single permanent global Note in registered form substantially
in the form set forth in Exhibit A (the "Offshore Global Note")
deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the
Offshore Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter
provided.
Notes offered and sold other than as described in the
preceding two paragraphs shall be issued in the form of permanent
certificated Notes in registered form in substantially the form
set forth in Exhibit A (the "U.S. Physical Notes"). Notes issued
pursuant to Section 2.07 in exchange for interests in the
Offshore Global Note shall be in the form of permanent
certificated Notes in registered form substantially in the form
set forth in Exhibit A (the "Offshore Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are
sometimes collectively herein referred to as the "Physical
Notes". The U.S. Global Note and the Offshore Global Note are
sometimes referred to herein as the "Global Notes".
The definitive Notes shall be typed, printed,
lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the
rules of any securities exchange on which the Notes may be
listed, all as determined by the Officers executing such Notes,
as evidenced by their execution of such Notes.
SECTION 2.02. Restrictive Legends. Unless and until a
Note is exchanged for an Exchange Note in connection with an
effective Registration Statement pursuant to the Registration
Rights Agreement, (i) the U.S. Global Note and each U.S. Physical
Note shall bear the legend set forth below on the face thereof
and (ii) the Offshore Physical Notes and the Offshore Global Note
shall bear the legend set forth below on the face thereof until
at least 41 days after the Closing Date and receipt by the
Company and the Trustee of a certificate substantially in the
form of Exhibit B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
<PAGE>
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED
TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT WITH
RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO MOOG INC. OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS
THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO MOOG INC.
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE
AND MOOG INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note,
shall also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO MOOG INC. 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 HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
<PAGE>
TRANSFERS OF THIS GLOBAL NOTE SHALL BE 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 SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. Execution, Authentication and
Denominations. The Notes shall be executed by an Officer of the
Company listed in clause (i) of the definition of Officer herein
and attested by its Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The signature of any of
these Officers on the Notes may be 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 Trustee or authenticating agent
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee or
authenticating agent manually signs the certificate of
authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this
Indenture.
The Trustee or an authenticating agent shall upon
receipt of a Company Order authenticate for original issue Notes
in the aggregate principal amount of up to $120,000,000. The
Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Exchange Notes in
an aggregate principal amount not to exceed $120,000,000;
provided that Exchange Notes shall be issuable only upon the
valid surrender for cancellation of Notes of a like aggregate
principal amount in accordance with the exchange offer made
pursuant to the Registration Rights Agreement. In each case, the
Trustee shall be entitled to receive an Officers' Certificate and
an Opinion of Counsel of the Company in connection with such
authentication and delivery of Notes. Such Opinion of Counsel in
connection with the authentication of the Exchange Notes shall be
substantially in the form of Exhibit E to this Indenture. Such
Company Order shall specify the amount of Notes to be
authenticated and the date on which the original issue of Notes
is to be authenticated. The aggregate principal amount of Notes
outstanding at any time may not exceed the amount set forth above
except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 2.06, 2.09 or 2.11.
The Trustee may appoint an authenticating agent to
authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating
agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
<PAGE>
The Notes shall be issuable only in registered form
without coupons and only in denominations of $1,000 in principal
amount and any integral multiple of $1,000 in excess thereof.
SECTION 2.04. Registrar and Paying Agent. The Company
shall maintain an office or agency where Notes may be presented
for registration of transfer or for exchange (the "Registrar"),
an office or agency where Notes may be presented for payment (the
"Paying Agent") and an office or agency where notices and demands
to or upon the Company in respect of the Notes and this Indenture
may be served, which shall be in the Borough of Manhattan, The
City of New York. The Company shall cause the Registrar to keep
a register of the Notes and of their transfer and exchange (the
"Security Register"). The Company may have one or more co-
Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall give prompt written
notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company
fails to maintain a Registrar, Paying Agent and/or agent for
service of notices and demands, the Trustee shall act as such
Registrar, Paying Agent and/or agent for service of notices and
demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall
become effective until (i) the acceptance of an appointment by a
successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of
this proviso. The Company, any Subsidiary of the Company, or any
Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar, and/or agent for service of notice and demands.
The Company initially appoints the Trustee as
Registrar, Paying Agent, authenticating agent and agent for
service of notice and demands. If, at any time, the Trustee is
not the Registrar, the Registrar shall make available to the
Trustee on or before each Interest Payment Date and at such other
times as the Trustee may reasonably request, the names and
addresses of the Holders as they appear in the Security Register.
SECTION 2.05. Paying Agent to Hold Money in Trust.
Not later than each due date of the principal, premium, if any,
and interest on any Notes, the Company shall deposit with the
Paying Agent by 11:00 a.m., New York time, in immediately
available funds, money sufficient to pay such principal, premium,
if any, and interest so becoming due. The Company shall require
each Paying Agent other than the Trustee to agree in writing that
such Paying Agent shall 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, premium, if any, and interest on the
Notes (whether such money has been paid to it by the Company or
<PAGE>
any other obligor on the Notes), and such Paying Agent shall
promptly notify the Trustee of any default by the Company (or any
other obligor on the Notes) 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
such 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 shall have no further liability for the money so paid over
to the Trustee. If the Company or any Subsidiary of the Company
or any Affiliate of any of them acts as Paying Agent, it will, on
or before each due date of any principal of, premium, if any, or
interest on the Notes, segregate and hold in a separate trust
fund for the benefit of the Holders a sum of money sufficient to
pay such principal, premium, if any, or interest so becoming due
until such sum of money shall be paid to such Holders or
otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee of its action or failure to act.
SECTION 2.06. Transfer and Exchange. The Notes are
issuable only in registered form. A Holder may transfer a Note by
written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of
this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only
upon, final acceptance and registration of the transfer by the
Registrar in the Security Register. Prior to the registration of
any transfer by a Holder as provided herein, the Company, the
Trustee, and any Agent of the Company shall treat the Person in
whose name the Note is registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and neither
the Company, the Trustee, nor any such Agent shall be affected by
notice to the contrary. Furthermore, any Holder of a Global Note
shall, by acceptance of such Global Note, agree that transfers of
beneficial interests in such Global Note may be effected only
through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial
interest in the Note shall be required to be reflected in a book
entry. When Notes are presented to the Registrar or a co-
Registrar with a request to register the transfer or to exchange
them for an equal principal amount of Notes of other authorized
denominations (including an exchange of Notes for Exchange
Notes), the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions
are met; provided that no exchanges of Notes for Exchange Notes
shall occur until a Registration Statement shall have been
declared effective by the Commission and that any Notes that are
exchanged for Exchange Notes shall be cancelled by the Trustee.
To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the
Registrar's request. No service charge shall be made to a Holder
or its transferee for any registration of transfer or exchange or
redemption of the Notes, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
<PAGE>
transfer taxes or other similar governmental charge payable upon
exchanges pursuant to Section 2.11, 3.08 or 9.04).
The Registrar shall not be required (i) to issue,
register the transfer of or exchange any Note during a period
beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Notes selected for
redemption under Section 3.03 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of
or exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in
part.
SECTION 2.07. Book-Entry Provisions for Global Notes.
(a) The U.S. Global Note and Offshore Global Note initially
shall (i) be registered in the name of the Depositary for such
Global Notes or the nominee of such Depositary, (ii) be delivered
to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.02.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect
to any Global Note held on their behalf by the Depositary, or the
Trustee as its custodian, or under the Global Note, and the
Depositary may be treated by the Company, the Trustee and any
Agent of the Company or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee
or any Agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Note.
(b) Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the
Depositary, its successors or their respective nominees.
Interests of beneficial owners in a Global Note may be
transferred in accordance with the rules and procedures of the
Depositary and the provisions of Section 2.08. In addition, U.S.
Physical Notes and Offshore Physical Notes shall be transferred
to all beneficial owners in exchange for their beneficial
interests in the U.S. Global Note or the Offshore Global Note,
respectively, if (i) the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary for the U.S.
Global Note or the Offshore Global Note, as the case may be, and
a successor depositary is not appointed by the Company within 90
days of such notice or (ii) an Event of Default has occurred and
is continuing and the Registrar has received a request to the
foregoing effect from the Depositary.
(c) Any beneficial interest in one of the Global Notes
that is transferred to a Person who takes delivery in the form of
an interest in the other Global Note will, upon transfer, 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 restrictions, if any, and other
<PAGE>
procedures applicable to beneficial interests in such other
Global Note for as long as it remains such an interest.
(d) In connection with any transfer of a portion of
the beneficial interests in the U.S. Global Note to beneficial
owners pursuant to paragraph (b) of this Section, the Registrar
shall reflect on its books and records the date and a decrease in
the principal amount of the U.S. Global Note in an amount equal
to the principal amount of the beneficial interest in the U.S.
Global Note to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes of like tenor and amount.
(e) In connection with the transfer of the entire U.S.
Global Note or Offshore Global Note to beneficial owners pursuant
to paragraph (b) of this Section, the U.S. Global Note or
Offshore Global Note, as the case may be, shall be deemed to be
surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the U.S. Global Note or Offshore
Global Note, as the case may be, an equal aggregate principal
amount of U.S. Physical Notes or Offshore Physical Notes, as the
case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for
an interest in the U.S. Global Note pursuant to paragraph (b) or
(d) of this Section shall, except as otherwise provided by
paragraph (f) of Section 2.08, bear the legend regarding transfer
restrictions applicable to the U.S. Physical Note set forth in
Section 2.02.
(g) Any Offshore Physical Note delivered in exchange
for an interest in the Offshore Global Note pursuant to paragraph
(b) of this Section shall, except as otherwise provided by
paragraph (f) of Section 2.08, bear the legend regarding transfer
restrictions applicable to the Offshore Physical Note set forth
in Section 2.02.
(h) The registered holder of a Global Note may grant
proxies and otherwise authorize any person, including Agent
Members and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
SECTION 2.08. Special Transfer Provisions. Unless and
until a Note is exchanged for an Exchange Note in connection with
an effective Registration Statement pursuant to the Registration
Rights Agreement, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to
the registration of any proposed transfer of a Note to any
Institutional Accredited Investor which is not a QIB (excluding
Non-U.S. Persons):
<PAGE>
(i) The Registrar shall register the transfer of any
Note, whether or not such Note bears the Private Placement
Legend, if (x) the requested transfer is after the time
period referred to in Rule 144(k) under the Securities Act
as in effect with respect to such transfer or (y) the
proposed transferee has delivered to the Registrar (A) a
certificate substantially in the form of Exhibit C hereto
and (B) if the aggregate principal amount of the Notes being
transferred is less than $100,000 at the time of such
transfer, an opinion of counsel acceptable to the Company
that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Note, upon
receipt by the Registrar of (x) the documents, if any,
required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of
the U.S. Global Note in an amount equal to the principal
amount of the beneficial interest in the U.S. Global Note to
be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S.
Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer
of a U.S. Physical Note or an interest in the U.S. Global Note to
a QIB (excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (x) U.S.
Physical Notes, the Registrar shall register the transfer if
such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Note for its own account
or an account with respect to which it exercises sole
investment discretion and that it and any such account is a
QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from
registration provided by Rule 144A or (y) an interest in the
U.S. Global Note, the transfer of such interest may be
effected only through the book entry system maintained by
the Depositary.
(ii) If the proposed transferee is an Agent Member, and
the Note to be transferred consists of U.S. Physical Notes,
upon receipt by the Registrar of the documents referred to
<PAGE>
in clause (i) and instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and an
increase in the principal amount of the U.S. Global Note in
an amount equal to the principal amount of the U.S. Physical
Notes to be transferred, and the Trustee shall cancel the
U.S. Physical Note so transferred.
(c) Transfers of Interests in the Offshore Global Note
or Offshore Physical Notes to U.S. Persons. The following
provisions shall apply with respect to any transfer of interests
in the Offshore Global Note or Offshore Physical Notes to U.S.
Persons:
(i) prior to the removal of the Private Placement
Legend from the Offshore Global Note or Offshore Physical
Notes pursuant to Section 2.02, the Registrar shall refuse
to register such transfer; and
(ii) after such removal, the Registrar shall register
the transfer of any such Note without requiring any
additional certification.
(d) Intentionally Omitted.
(e) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer of
a Note to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer
to any Non-U.S. Person if the Note to be transferred is a
U.S. Physical Note or an interest in the U.S. Global Note
only upon receipt of a certificate substantially in the form
of Exhibit D from the proposed transferor.
(ii) (a) If the proposed Transferor is an Agent Member
holding a beneficial interest in the U.S. Global Note, upon
receipt by the Registrar of (x) the document required by
paragraph (i) and (y) instructions in accordance with the
Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and a
decrease in the principal amount of the U.S. Global Note in
an amount equal to the principal amount of the beneficial
interest in the U.S. Global Note to be transferred, and
(b) if the proposed transferee is an Agent Member, upon
receipt by the Registrar of instructions given in accordance
with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date
and an increase in the principal amount of the Offshore
Global Note in an amount equal to the principal amount of
the U.S. Physical Notes or the U.S. Global Note, as the case
may be, to be transferred, and the Trustee shall cancel the
Physical Note, if any, so transferred or decrease the amount
of the U.S. Global Note.
<PAGE>
(f) Private Placement Legend. Upon the transfer,
exchange or replacement of Notes not bearing the Private
Placement Legend, the Registrar shall deliver Notes that do not
bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Notes bearing the Private Placement Legend, the
Registrar shall deliver only Notes that bear the Private
Placement Legend unless either (i) the circumstances contemplated
by the fourth paragraph of Section 2.01 or paragraphs (a)(i)(x)
or (e)(ii) of this Section 2.08 exist or (ii) there is delivered
to the Registrar an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the
Securities Act.
(g) General. By its acceptance of any Note bearing
the Private Placement Legend, each Holder of such Note
acknowledges the restrictions on transfer of such Note set forth
in this Indenture and in the Private Placement Legend and agrees
that it will transfer such Note only as provided in this
Indenture. The Registrar shall not register the transfer of any
Note unless such transfer complies with the restrictions on
transfer of such Note set forth in this Indenture. In connection
with any transfer of Notes, each Holder agrees by its acceptance
of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of
them may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act;
provided that the Registrar shall not be required to determine
(but may rely on a determination made by the Company with respect
to) the sufficiency of any such certifications, legal opinions or
other information.
The Registrar shall retain copies of all letters,
notices and other written communications received pursuant to
Section 2.07 or this Section 2.08. The Company shall have the
right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Notes. If a mutilated Note
is surrendered to the Trustee or if the Holder claims that the
Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note
of like tenor and principal amount and bearing a number not
contemporaneously outstanding. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient
in the judgment of both the Trustee and the Company to protect
the Company, the Trustee or any Agent from any loss that any of
them may suffer if a Note is replaced. The Company may charge
such Holder for its expenses and the expenses of the Trustee in
replacing a Note. In case any such mutilated, lost, destroyed or
wrongfully taken Note has become or is about to become due and
payable, the Company in its discretion may pay such Note instead
of issuing a new Note in replacement thereof.
<PAGE>
Every replacement Note is an additional obligation of
the Company and shall be entitled to the benefits of this
Indenture.
SECTION 2.10. Outstanding Notes. Notes outstanding at
any time are all Notes that have been authenticated by the
Trustee except for those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.10 as not
outstanding.
If a Note is replaced pursuant to Section 2.09, it
ceases to be outstanding unless and until the Trustee and the
Company receive proof satisfactory to them that the replaced Note
is held by a bona fide purchaser.
If the Paying Agent (other than the Company or an
Affiliate of the Company) holds on the maturity date money
sufficient to pay Notes payable on that date, then on and after
that date such Notes cease to be outstanding and interest on them
shall cease to accrue.
A Note does not cease to be outstanding because the
Company or one of its Affiliates holds such Note, provided,
however, that, in determining whether the Holders of the
requisite principal amount of the outstanding Notes have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company or any other obligor
upon the Notes or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes
which the Trustee knows to be so owned shall 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 other obligor upon the Notes or any Affiliate of the Company
or of such other obligor.
SECTION 2.11. Temporary Notes. Until definitive Notes
are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have
insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the
temporary Notes, as evidenced by their execution of such
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
shall be exchangeable for definitive Notes upon surrender of the
temporary Notes at the office or agency of the Company designated
for such purpose pursuant to Section 4.02, without charge to the
Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal
amount of definitive Notes of authorized denominations. Until so
<PAGE>
exchanged, the temporary Notes shall be entitled to the same
benefits under this Indenture as definitive Notes.
SECTION 2.12. 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. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered
to them for transfer, exchange or payment. The Trustee shall
cancel all Notes surrendered for transfer, exchange, payment or
cancellation and shall destroy them in accordance with its normal
procedure. The Company may not issue new Notes to replace Notes
it has paid in full or delivered to the Trustee for cancellation.
SECTION 2.13. CUSIP Numbers. The Company in issuing
the Notes may use "CUSIP" and "CINS" numbers (if then generally
in use), and the Trustee shall use CUSIP numbers or CINS numbers,
as the case may be, in notices of redemption or exchange as a
convenience to Holders; provided that any such notice shall 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 and that reliance may be placed
only on the other identification numbers printed on the Notes.
SECTION 2.14. Defaulted Interest. If the Company
defaults in a payment of interest on the Notes, it shall pay, or
shall deposit with the Paying Agent money in immediately
available funds sufficient to pay the defaulted interest, plus
(to the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14
with respect to the payment of any defaulted interest, shall mean
the fifteenth day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is
a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder and to the
Trustee a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest to be paid.
ARTICLE THREE
Redemption
SECTION 3.01. Right of Redemption. (a) The Notes may
be redeemed at the election of the Company, in whole or in part,
at any time and from time to time on or after May 1, 2001 and
prior to maturity, upon not less than 30 nor more than 60 days'
prior notice mailed by first class mail to each Holder's last
address as it appears in the Security Register, at the following
Redemption Prices (expressed in percentages of principal amount),
plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant
Regular Record Date that is on or prior to the Redemption Date to
receive interest due on an Interest Payment Date) if redeemed
<PAGE>
during the 12-month period commencing on May 1 of the years set
forth below:
Redemption
Year Price
2001 . . . . . . . . 105.0%
2002 . . . . . . . . 102.5
2003 and thereafter. 100.0
SECTION 3.02. Notices to Trustee. If the Company
elects to redeem Notes pursuant to Section 3.01, it shall notify
the Trustee in writing of the Redemption Date and the principal
amount of Notes to be redeemed.
The Company shall give each notice provided for in this
Section 3.02 in an Officers' Certificate at least 45 days before
the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee).
SECTION 3.03. Selection of Notes to Be Redeemed. If
less than all of the Notes are to be redeemed at any time, the
Trustee shall select the Notes to be redeemed in compliance with
the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not
listed on a national securities exchange, on a pro rata basis, by
lot or by such other method as the Trustee in its sole discretion
shall deem fair and appropriate.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption. Notes in
denominations of $1,000 in principal amount may only be redeemed
in whole. The Trustee may select for redemption portions (equal
to $1,000 in principal amount or any integral multiple thereof)
of Notes that have denominations larger than $1,000 in principal
amount. Provisions of this Indenture that apply to Notes called
for redemption also apply to portions of Notes called for
redemption. The Trustee shall notify the Company and the
Registrar promptly in writing of the Notes or portions of Notes
to be called for redemption.
SECTION 3.04. Notice of Redemption. At least 30 days
but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first class mail to each
Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
<PAGE>
(iv) that Notes called for redemption must be
surrendered to the Paying Agent in order to collect the
Redemption Price;
(v) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the Redemption Date and the
only remaining right of the Holders is to receive payment of
the Redemption Price plus accrued and unpaid interest to the
Redemption Date upon surrender of the Notes to the Paying
Agent;
(vi) that, if any Note is being redeemed in part, the
portion of the principal amount (equal to $1,000 in
principal amount or any integral multiple thereof) of such
Note to be redeemed and that, on and after the Redemption
Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof
will be reissued;
(vii) that, if any Note contains a CUSIP or CINS
number as provided in Section 2.13, 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 reliance may be placed only on the
other identification numbers printed on the Notes; and
(viii) the aggregate principal amount of Notes being
redeemed.
At the Company's request (which request may be revoked
by the Company at any time prior to the date which is two
Business Days prior to the date on which the Trustee shall have
given such notice to the Holders), made in writing to the Trustee
at least 45 days (or such shorter period as shall be satisfactory
to the Trustee) before a Redemption Date, the Trustee shall give
the notice of redemption in the name and at the expense of the
Company. Concurrently with the giving of such notice by the
Company to the Holders, the Company shall deliver to the Trustee
an Officers' Certificate stating that such notice has been given.
SECTION 3.05. Effect of Notice of Redemption. Once
notice of redemption is mailed, Notes called for redemption
become due and payable on the Redemption Date and at the
Redemption Price. Upon surrender of any Notes to the Paying
Agent, such Notes shall be paid at the Redemption Price, plus
accrued and unpaid interest to the Redemption Date.
Notice of redemption shall be deemed to be given when
mailed, whether or not the Holder receives the notice. In any
event, failure to give such notice, or any defect therein, shall
not affect the validity of the proceedings for the redemption of
Notes held by Holders to whom such notice was properly given.
SECTION 3.06. Deposit of Redemption Price. On or
prior to any Redemption Date, the Company shall deposit with the
Paying Agent (or, if the Company is acting as its own Paying
<PAGE>
Agent, shall segregate and hold in trust as provided in Section
2.05) by 11:00 a.m., New York time, in immediately available
funds, money sufficient to pay the Redemption Price of and
accrued and unpaid interest on all Notes to be redeemed on that
date other than Notes or portions thereof called for redemption
on that date that have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.07. Payment of Notes Called for Redemption.
If notice of redemption has been given in the manner provided
above, the Notes or portion of Notes specified in such notice to
be redeemed shall become due and payable on the Redemption Date
at the Redemption Price stated therein, together with accrued and
unpaid interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such
Notes at the Redemption Price and accrued and unpaid interest to
the Redemption Date, in which case the principal, until paid,
shall bear interest from the Redemption Date at the rate
prescribed in the Notes), such Notes shall cease to accrue
interest. Upon surrender of any Note for redemption in
accordance with a notice of redemption, such Note shall be paid
and redeemed by the Company at the Redemption Price, together
with accrued and unpaid interest to the Redemption Date; provided
that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders
registered as such at the close of business on the relevant
Regular Record Date.
SECTION 3.08. Notes Redeemed in Part. Upon surrender
of any Note that is redeemed in part, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder a
new Note equal in principal amount to the unredeemed portion of
such surrendered Note.
ARTICLE FOUR
Covenants
SECTION 4.01. Payment of Notes. The Company shall pay
the principal of, premium, if any, and interest on the Notes on
the dates and in the manner provided in the Notes and this
Indenture. An installment of principal, premium, if any, or
interest shall be considered paid on the date due if the Trustee
or Paying Agent (other than the Company, a Subsidiary of the
Company, or any Affiliate of any of them) holds on that date
money in immediately available funds designated for and
sufficient to pay the installment. If the Company or any
Subsidiary of the Company or any Affiliate of any of them acts as
Paying Agent, an installment of principal, premium, if any, or
interest shall be considered paid on the due date if the entity
acting as Paying Agent complies with the last sentence of Section
2.05. As provided in Section 6.09, upon any bankruptcy or
reorganization procedure relative to the Company, the Trustee
shall serve as the Paying Agent and conversion agent, if any, for
the Notes.
<PAGE>
The Company shall pay interest on overdue principal,
premium, if any, and interest on overdue installments of
interest, to the extent lawful, at the rate per annum specified
in the Notes.
SECTION 4.02. Maintenance of Office or Agency. The
Company will maintain in the Borough of Manhattan, The City of
New York, 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 this Indenture may be served. 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 shall fail to maintain any
such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided that no such designation
or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of
any such other office or agency.
The Company hereby initially designates the office of
the Trustee, located in the Borough of Manhattan, The City of New
York, as such office of the Company in accordance with Section
2.04.
SECTION 4.03. Limitation on Indebtedness. (a) The
Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than Indebtedness
existing on the Original Closing Date and the Notes); provided
that the Company and any Restricted Subsidiary (to the extent
permitted under Section 4.07) may Incur Indebtedness if, after
giving effect to the Incurrence of such Indebtedness and the
receipt and application of the proceeds therefrom, the Interest
Coverage Ratio would be greater than (x) for the period beginning
on the Original Closing Date and ending on the fourth anniversary
thereof, 2.0:1 and (y) thereafter 2.25:1.
Notwithstanding the foregoing, the Company and any
Restricted Subsidiary (to the extent permitted under Section
4.07) may Incur each and all of the following:
(i) Indebtedness outstanding at any time under the
Credit Agreement in an aggregate principal amount not to
exceed $165 million, less any amount of Indebtedness
permanently repaid as provided under Section 4.09;
<PAGE>
(ii) Indebtedness (A) to the Company evidenced by an
unsubordinated promissory note or (B) to any of its
Restricted Subsidiaries; provided that any event which
results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another
Restricted Subsidiary) shall be deemed, in each case, to
constitute an Incurrence of such Indebtedness not permitted
by this clause (ii);
(iii) Indebtedness issued in exchange for, or the net
proceeds of which are used to refinance or refund, then
outstanding Indebtedness, other than Indebtedness Incurred
under clauses (i), (ii), (iv), (vi) or (vii) of this
paragraph, and any refinancings thereof in an amount not to
exceed the amount so refinanced or refunded (plus premiums,
accrued interest, fees and expenses); provided that
Indebtedness the proceeds of which are used to refinance or
refund the Notes or Indebtedness that is pari passu with, or
subordinated in right of payment to, the Notes shall only be
permitted under this clause (iii) if (A) in case the Notes
are refinanced in part or the Indebtedness to be refinanced
is pari passu with the Notes, such new Indebtedness, by its
terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is outstanding, is
expressly made pari passu with, or subordinate in right of
payment to, the remaining Notes, (B) in case the
Indebtedness to be refinanced is subordinated in right of
payment to the Notes, such new Indebtedness, by its terms or
by the terms of any agreement or instrument pursuant to
which such new Indebtedness is issued or remains
outstanding, is expressly made subordinate in right of
payment to the Notes at least to the extent that the
Indebtedness to be refinanced is subordinated to the Notes
and (C) such new Indebtedness, determined as of the date of
Incurrence of such new Indebtedness, does not mature prior
to the Stated Maturity of the Indebtedness to be refinanced
or refunded, and the Average Life of such new Indebtedness
is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded; and provided
further that in no event may Indebtedness of the Company be
refinanced by means of any Indebtedness of any Restricted
Subsidiary pursuant to this clause (iii);
(iv) Indebtedness (A) in respect of performance,
surety or appeal bonds provided in the ordinary course of
business, (B) under Currency Agreements and Interest Rate
Agreements designed solely to protect the Company or any of
its Restricted Subsidiaries from fluctuations in interest
rates or foreign currency exchange rates; provided that such
agreements do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest
rates or by reason of fees, indemnities and compensation
payable thereunder; and (C) arising from agreements
providing for indemnification, adjustment of purchase price
or similar obligations, or from Guarantees or letters of
<PAGE>
credit, surety bonds or performance bonds securing any
obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in any case
Incurred in connection with the disposition of any business,
assets or Restricted Subsidiary of the Company (other than
Guarantees of Indebtedness Incurred by any Person acquiring
all or any portion of such business, assets or Restricted
Subsidiary of the Company for the purpose of financing such
acquisition), in a principal amount not to exceed the gross
proceeds actually received by the Company or any Restricted
Subsidiary in connection with such disposition;
(v) Indebtedness of the Company, to the extent the net
proceeds thereof are promptly used to purchase Notes
tendered in an Offer to Purchase made as a result of a
Change of Control;
(vi) Indebtedness of the Company, to the extent the
net proceeds thereof are promptly deposited to defease the
Notes as described below under Section 8.02;
(vii) Guarantees of the Notes;
(viii) Indebtedness outstanding at any time in an
aggregate principal amount not to exceed $20 million; and
(ix) Indebtedness outstanding at any time pursuant to
the Supplemental Plan in an aggregate amount not to exceed
$10 million. The Company shall not, and shall not permit
any Restricted Subsidiary to, Incur Indebtedness pursuant to
the Supplemental Plan in an aggregate amount that exceeds
$10 million.
(b) For purposes of determining any particular amount
of Indebtedness under this Section 4.03, (1) Indebtedness
Incurred under the Credit Agreement on or prior to the Original
Closing Date shall be treated as Incurred pursuant to clause (i)
of the second paragraph of Section 4.03(a), and (2) Guarantees,
Liens or obligations with respect to letters of credit supporting
Indebtedness otherwise included in the determination of such
particular amount shall not be included. For purposes of
determining compliance with this Section 4.03, in the event that
an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described in the above clauses (other
than Indebtedness referred to in clause (1) of the preceding
sentence), the Company, in its sole discretion, shall classify
such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of such clauses.
SECTION 4.04. Limitation on Senior Subordinated
Indebtedness. The Company will not Incur any Indebtedness that
is expressly made subordinate in right of payment to any Senior
Indebtedness of the Company unless such Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant to
which such Indebtedness is outstanding, is expressly made pari
passu with, or subordinate in right of payment to, the Notes
pursuant to provisions substantially similar to those contained
<PAGE>
in Article Ten of this Indenture; provided that the foregoing
limitation shall not apply to distinctions between categories of
Senior Indebtedness of the Company that exist by reason of any
Liens or Guarantees arising or created in respect of some but not
all of such Senior Indebtedness.
SECTION 4.05. Limitation on Restricted Payments. The
Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, (i) declare or pay any dividend or
make any distribution on its Capital Stock (other than dividends
or distributions payable solely in shares of its Capital Stock
(other than Redeemable Stock) or in options, warrants or other
rights to acquire shares of such Capital Stock (other than
Redeemable Stock)) held by Persons other than the Company or any
of its Wholly Owned Restricted Subsidiaries, (ii) purchase,
redeem, retire or otherwise acquire for value any shares of
Capital Stock of the Company or a Restricted Subsidiary
(including options, warrants or other rights to acquire such
shares of Capital Stock) held by Persons other than the Company
or any of its Wholly Owned Restricted Subsidiaries, (iii) make
any voluntary or optional principal payment, or voluntary or
optional redemption, repurchase, defeasance, or other acquisition
or retirement for value, of Indebtedness of the Company that is
subordinated in right of payment to the Notes or (iv) make any
Investment, other than a Permitted Investment, in any Person
(such payments or any other actions described in clauses (i)
through (iv) being collectively "Restricted Payments") if, at the
time of, and after giving effect to, the proposed Restricted
Payment: (A) a Default or Event of Default shall have occurred
and be continuing, (B) the Company could not Incur at least $1.00
of Indebtedness under the first paragraph of Section 4.03(a) or
(C) the aggregate amount of all Restricted Payments (the amount,
if other than in cash, to be determined in good faith by the
Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution) made after the Original Closing
Date shall exceed the sum of (1) 50% of the aggregate amount of
the Adjusted Consolidated Net Income (or, if the Adjusted
Consolidated Net Income is a loss, minus 100% of the amount of
such loss) (determined by excluding income resulting from
transfers of assets by the Company or a Restricted Subsidiary to
an Unrestricted Subsidiary) accrued on a cumulative basis during
the period (taken as one accounting period) beginning on the
first day of the fiscal quarter beginning immediately following
the Original Closing Date and ending on the last day of the last
fiscal quarter preceding the Transaction Date for which reports
have been filed pursuant to Section 4.16 plus (2) the aggregate
Net Cash Proceeds received by the Company after the Original
Closing Date from the issuance and sale permitted by this
Indenture of its Capital Stock (other than Redeemable Stock) to a
Person who is not a Subsidiary of the Company or from the
issuance to a Person who is not a Subsidiary of the Company of
any options, warrants or other rights to acquire Capital Stock of
the Company (in each case, exclusive of any Redeemable Stock or
any options, warrants or other rights that are redeemable at the
option of the holder, or are required to be redeemed, prior to
the Stated Maturity of the Notes) plus (3) an amount equal to the
net reduction in Investments (other than reductions in Permitted
<PAGE>
Investments) in any Person resulting from payments of interest on
Indebtedness, dividends, repayments of loans or advances, or
other transfers of assets, in each case to the Company or any
Restricted Subsidiary or from the Net Cash Proceeds from the sale
of any such Investment (except, in each case, to the extent any
such payment or proceeds are included in the calculation of
Adjusted Consolidated Net Income), or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in
each case as provided in the definition of "Investment"), not to
exceed, in each case, the amount of Investments previously made
by the Company or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary plus (4) $3 million.
The foregoing provision shall not be violated by reason
of:
(i) the payment of any dividend within 60 days after
the date of declaration thereof if, at said date of
declaration, such payment would comply with the foregoing
paragraph;
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes including
premium, if any, and accrued and unpaid interest, with the
proceeds of, or in exchange for, Indebtedness Incurred under
clause (iii) of the second paragraph of Section 4.03(a);
(iii) the repurchase, redemption or other acquisition
of Capital Stock of the Company (or options, warrants or
other rights to acquire such Capital Stock) in exchange for,
or out of the proceeds of a substantially concurrent
offering of, shares of Capital Stock (other than Redeemable
Stock) of the Company;
(iv) the making of any principal payment or the
repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness of the Company which
is subordinated in right of payment to the Notes in exchange
for, or out of the proceeds of, a substantially concurrent
offering of, shares of the Capital Stock of the Company
(other than Redeemable Stock);
(v) payments or distributions, to dissenting
stockholders pursuant to applicable law, pursuant to or in
connection with a consolidation, merger or transfer of
assets that complies with Article Five of the Indenture;
(vi) the repurchase of shares, or options to purchase
shares, of Capital Stock of the Company from employees,
former employees, directors or former directors of the
Company or any of its Subsidiaries (or permitted transferees
of such employees, former employees, directors or former
directors), pursuant to the terms of agreements (including
employment agreements) or plans (or amendments thereto)
approved by the Board of Directors under which such persons
purchase or sell or are granted the option to purchase or
<PAGE>
sell, shares of such stock; provided, however, that the
aggregate amount of such repurchases shall not exceed
(A) $500,000 in any calendar year or (B) $3 million in the
aggregate;
(vii) any repurchase by the Company or any Restricted
Subsidiary of the Capital Stock of Moog Japan Ltd. from any
Person other than the Company or a Subsidiary; provided,
however, that the aggregate amount expended by the Company
and its Restricted Subsidiaries under this clause (vii)
shall not exceed $3 million;
(viii) the repurchase by the Company of 714,600 shares
of Class A Common Stock of the Company from Seneca Foods
Corporation at a purchase price of $18 per share pursuant to
the Stock Purchase Agreement dated March 26, 1996 between
the Company and Seneca Foods Corporation;
(ix) the declaration and payment (strictly in
accordance with the provisions of Article Third of the
Company's Certificate of Incorporation as in effect on the
Original Closing Date) of regular periodic dividends on the
Company's outstanding 9% Series B Cumulative Convertible
Exchangeable Preferred Stock;
(x) the Investment by the Company or a Restricted
Subsidiary in a joint venture with a U.S. subsidiary of a
European manufacturer of hydraulics systems and components,
which Investment is currently expected not to exceed $2.0
million; or
(xi) Investments by the Company and its Restricted
Subsidiaries in an aggregate amount not to exceed $10
million.
Each Restricted Payment permitted pursuant to the
preceding paragraph (other than the Restricted Payments referred
to in clauses (ii), (vii), (viii), (x) and (xi) thereof and an
exchange of Capital Stock for Capital Stock referred to in clause
(iii) thereof or an exchange of Capital Stock for Indebtedness
referred to in clause (iv) thereof), and the Net Cash Proceeds
from any issuance of Capital Stock referred to in clauses (iii)
and (iv), shall be included in calculating whether the conditions
of clause (C) of the first paragraph of this Section 4.05 have
been met with respect to any subsequent Restricted Payments. In
the event the proceeds of an issuance of Capital Stock of the
Company are used for the redemption, repurchase or other
acquisition of the Notes, or Indebtedness that is pari passu with
the Notes, then the Net Cash Proceeds of such issuance shall be
included in clause (C) of the first paragraph of this Section
4.05 only to the extent such proceeds are not used for such
redemption, repurchase or other acquisition of Indebtedness.
<PAGE>
SECTION 4.06. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. The Company will
not, and will not permit any Restricted Subsidiary to, create or
otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to (i) pay dividends or make any
other distributions permitted by applicable law on any Capital
Stock of such Restricted Subsidiary owned by the Company or any
other Restricted Subsidiary, (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary, (iii) make loans
or advances to the Company or any other Restricted Subsidiary or
(iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provisions shall not restrict any
encumbrances or restrictions:
(i) existing on the Original Closing Date in the
Credit Agreement, this Indenture or any other agreements in
effect on the Original Closing Date, and any extensions,
refinancings, renewals or replacements of any of such
agreements; provided that the encumbrances and restrictions
in any such extensions, refinancings, renewals or
replacements are no less favorable in any material respect
to the Holders than those encumbrances or restrictions that
are then in effect and that are being extended, refinanced,
renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the
property or assets of such Person acquired by the Company or
any Restricted Subsidiary, existing at the time of such
acquisition and not incurred in contemplation thereof, which
encumbrances or restrictions are not applicable to any
Person or the property or assets of any Person other than
such Person or the property or assets of such Person so
acquired;
(iv) in the case of clause (iv) of the first paragraph
of this Section 4.06, (A) that restrict in a customary
manner the subletting, assignment or transfer of any
property or asset that is a lease, license, conveyance or
contract or similar property or asset, (B) existing by
virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of
the Company or any Restricted Subsidiary not otherwise
prohibited by this Indenture or (C) arising or agreed to in
the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the
aggregate, detract from the value of property or assets of
the Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and
imposed pursuant to an agreement that has been entered into
for the sale or disposition of all or substantially all of
<PAGE>
the Capital Stock of, or property and assets of, such
Restricted Subsidiary; or
(vi) contained in agreements governing the acquisition
and/or financing of facilities and improvements thereto by
Moog GmbH.
Nothing contained in this Section 4.06 shall prevent the Company
or any Restricted Subsidiary from restricting the sale or other
disposition of property or assets of the Company of any of its
Restricted Subsidiaries that secure Indebtedness of the Company
or any of its Restricted Subsidiaries.
SECTION 4.07. Limitation on the Issuance of Capital
Stock and Indebtedness of Restricted Subsidiaries. The Company
will not sell, and will not permit any Restricted Subsidiary,
directly or indirectly, to issue or sell, any shares of Capital
Stock of a Restricted Subsidiary (including options, warrants or
other rights to purchase shares of such Capital Stock) except
(i) to the Company or a Wholly Owned Restricted Subsidiary; or
(ii) issuances of director's qualifying shares or sales to
foreign nationals of shares of Capital Stock of foreign
Restricted Subsidiaries, to the extent required by applicable
law.
The Company will not permit any Restricted Subsidiary
directly or indirectly, to Incur any Indebtedness except (i)
Indebtedness existing on the Original Closing Date;
(ii) Indebtedness in an amount not to exceed $3 million, the
proceeds of which are used by the Company or any of its
Restricted Subsidiaries to repurchase the Capital Stock of Moog
Japan Ltd. held by any Person other than the Company or any
Subsidiary; (iii) Indebtedness expressly permitted under clause
(ii), (iii) or (iv) of the second paragraph of Section 4.03(a);
and (iv) Indebtedness (in addition to the other amounts described
in this paragraph) outstanding at any time in an aggregate
principal amount not to exceed (A) $15 million for the period
beginning on the Original Closing Date and ending on the third
anniversary thereof, and (B) $25 million thereafter. The
limitations set forth in this paragraph are in addition to those
set forth in Section 4.03.
SECTION 4.08. Limitation on Transactions with
Stockholders and Affiliates. The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly,
enter into, renew or extend any transaction (including, without
limitation, the purchase, sale, lease or exchange of property or
assets, or the rendering of any service) with any holder (or any
Affiliate of such holder) of 5% or more of any class of Capital
Stock of the Company or any Restricted Subsidiary or with any
Affiliate of the Company or any Restricted Subsidiary, except
upon fair and reasonable terms no less favorable to the Company
or such Restricted Subsidiary than could be obtained, at the time
of such transaction or, if such transaction is pursuant to a
written agreement, at the time of the execution of the agreement
providing therefor, in a comparable arm's-length transaction with
a Person that is not such a holder or an Affiliate.
<PAGE>
The foregoing limitation does not limit, and shall not
apply to:
(i) transactions (A) approved by a majority of the
disinterested members of the Board of Directors or, (B) for
which the Company or a Restricted Subsidiary delivers to the
Trustee a written opinion of a nationally recognized
investment banking firm stating that the transaction is fair
to the Company or such Restricted Subsidiary from a
financial point of view;
(ii) any transaction solely between the Company and any
of its Wholly Owned Restricted Subsidiaries or solely
between Wholly Owned Restricted Subsidiaries;
(iii) the payment of reasonable and customary regular
fees to directors of the Company who are not employees of
the Company; or
(iv) any Restricted Payments not prohibited by Section
4.05.
Notwithstanding the foregoing, any transaction covered by the
first paragraph of this Section 4.08 and not covered by clause
(ii) or (iii) hereof must be approved or determined to be fair in
the manner provided for (1) in clause (i) (A) or (B) above if the
aggregate amount of such transaction exceeds $1 million in value
or (2) in clause (i)(B) above if the aggregate amount of such
transaction exceeds $5 million in value.
SECTION 4.09. Limitation on Asset Sales. The Company
will not, and will not permit any Restricted Subsidiary to,
consummate any Asset Sale, unless (i) the consideration received
by the Company or such Restricted Subsidiary is at least equal to
the Fair Market Value of the assets sold or disposed of and (ii)
at least 85% of the consideration received consists of cash or
Temporary Cash Investments. In the event and to the extent that
the Net Cash Proceeds received by the Company or any of its
Restricted Subsidiaries from one or more Asset Sales occurring on
or after the Original Closing Date in any period of 12
consecutive months exceed $10 million, then the Company shall or
shall cause the relevant Restricted Subsidiary to (i) within
twelve months after the date Net Cash Proceeds so received exceed
$10 million (A) apply (to the extent required) an amount equal to
such excess Net Cash Proceeds to permanently repay Senior
Indebtedness of the Company or Indebtedness of any Restricted
Subsidiary, in each case owing to a Person other than the Company
or any of its Restricted Subsidiaries or (B) invest an equal
amount, or the amount not so applied pursuant to clause (A) (or
enter into a definitive agreement committing to so invest within
12 months after the date of such agreement), in property or
assets (other than current assets) of a nature or type or that
are used in a business (or in a company having property and
assets of a nature or type, or engaged in a business) similar or
related to the nature or type of the property and assets of, or
the business of, the Company and its Restricted Subsidiaries
existing on the date of such investment and (ii) apply (no later
<PAGE>
than the end of the 12-month period referred to in clause (i))
such excess Net Cash Proceeds (to the extent not applied pursuant
to clause (i)) as provided in the following paragraph of this
Section 4.09. The amount of such excess Net Cash Proceeds
required to be applied (or to be committed to be applied) during
such 12-month period as set forth in clause (i) of the preceding
sentence and not applied as so required by the end of such period
shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the
aggregate amount of Excess Proceeds not theretofore subject to an
Offer to Purchase pursuant to this Section 4.09 totals at least
$5 million, the Company must commence, not later than the
fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate
principal amount of Notes equal to the Excess Proceeds on such
date, at a purchase price equal to 100% of the principal amount
of the Notes, plus, in each case, accrued interest (if any) to
the date of purchase.
SECTION 4.10. Repurchase of Notes upon a Change of
Control. The Company must commence, within 30 days of the
occurrence of a Change of Control, and consummate an Offer to
Purchase for all Notes then outstanding, at a purchase price
equal to 101% of the principal amount thereof, plus accrued
interest (if any) to the date of purchase.
SECTION 4.11. Existence. Subject to Articles Four and
Five of this Indenture, 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 the respective organizational
documents of the Company and each such Restricted Subsidiary and
the rights (whether pursuant to charter, partnership certificate,
agreement, statute or otherwise), licenses and franchises of the
Company and each such Restricted Subsidiary; provided that the
Company shall not be required to preserve any such right, license
or franchise, or the existence of any Restricted Subsidiary, if
the maintenance or preservation thereof is no longer desirable in
the conduct of the business of the Company and Restricted its
Subsidiaries taken as a whole; and provided further that any
Restricted Subsidiary may consolidate with, merge into, or sell,
convey, transfer, lease or otherwise dispose of all or part of
its property and assets to the Company or any Wholly Owned
Restricted Subsidiary.
SECTION 4.12. Payment of Taxes and Other Claims. The
Company will pay or discharge and shall cause each of its
Subsidiaries to pay or discharge, or cause to be paid or
discharged, before the same shall become delinquent (i) all
material taxes, assessments and governmental charges levied or
imposed upon (a) the Company or any such Subsidiary, (b) the
income or profits of any such Subsidiary which is a corporation
or (c) the property of the Company or any such Subsidiary and
(ii) 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 such Subsidiary; provided that the Company
<PAGE>
shall not be required to pay or discharge, or cause to be paid or
discharged, 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
have been established.
SECTION 4.13. Maintenance of Properties and Insurance.
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 and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and
advantageously conducted at all times; provided that nothing in
this Section 4.13 shall prevent the Company or any such
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 Company's
judgment, desirable in the conduct of the business of the Company
or such Restricted Subsidiary.
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 and public liability insurance, with
reputable insurers or with the government of the United States of
America, or an agency or instrumentality thereof, in such
amounts, with such deductibles and by such methods as the Company
in good faith shall determine to be reasonable and appropriate in
the circumstances.
SECTION 4.14. Notice of Defaults. In the event that
the Company becomes aware of any Default or Event of Default the
Company, promptly after it becomes aware thereof, will give
written notice thereof to the Trustee.
SECTION 4.15. Compliance Certificates. (a) The
Company shall deliver to the Trustee each year, within 105 days
after the last day of the Company's immediately preceding fiscal
year, an Officers' Certificate stating whether or not the signers
know of any Default or Event of Default that occurred during such
fiscal year. Such certificate shall contain a certification from
the principal executive officer, principal financial officer or
principal accounting officer of the Company that a review has
been conducted of the activities of the Company and its
Restricted Subsidiaries and the Company's and its Restricted
Subsidiaries' performance under this Indenture and that the
Company has complied with all conditions and covenants under this
Indenture. For purposes of this Section 4.15(a), such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If they do
know of such a Default or Event of Default, the certificate shall
describe any such Default or Event of Default and its status.
<PAGE>
(b) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, a
certificate signed by the Company's independent certified 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, anything came to their attention
that caused them to believe that the Company was not in
compliance with any of the terms, covenants, provisions or
conditions of Article Four and Section 5.01 of this Indenture as
they pertain to accounting matters and, if any Default or Event
of Default has come to their attention, specifying the nature and
period of existence thereof; provided that such independent
certified public accountants shall not be liable in respect of
such statement by reason of any failure to obtain knowledge of
any such Default or Event of Default that would not be disclosed
in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date
of such examination.
SECTION 4.16. Commission Reports and Reports to
Holders. The Company shall file with the Commission the annual,
quarterly and other reports required by Section 13(a) or 15(d) of
the Exchange Act, regardless of whether such Sections of the
Exchange Act are applicable to the Company, and shall provide
such reports to Holders and the Trustee within 15 days of the
date it would have been required to file such reports with the
Commission had it been subject to such Sections. The Company
also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.17. Waiver of Stay, Extension or Usury Laws.
The Company 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 from paying all or any portion of
the principal of, premium, if any, 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 this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit
or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE FIVE
Successor Corporation
SECTION 5.01. When Company May Merge, Etc. The
Company shall not consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or
substantially as an entirety in one transaction or a series of
<PAGE>
related transactions) to, any Person or permit any Person to
merge with or into the Company unless:
(i) the Company shall be the continuing Person, or the
Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that
acquired or leased such property and assets of the Company
shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction
thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Notes and under
this Indenture;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such
transaction on a pro forma basis, the Company, or any Person
becoming the successor obligor of the Notes, shall have a
Consolidated Tangible Net Worth equal to or greater than the
Consolidated Tangible Net Worth of the Company immediately
prior to such transaction;
(iv) immediately after giving effect to such
transaction on a pro forma basis the Company, or any Person
becoming the successor obligor of the Notes, as the case may
be, could Incur at least $1.00 of Indebtedness under the
first paragraph of Section 4.03(a); and
(v) the Company delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computations to
demonstrate compliance with clauses (iii) and (iv)) and
Opinion of Counsel, in each case stating that such
consolidation, merger or transfer and such supplemental
indenture complies with this provision and that all
conditions precedent provided for herein relating to such
transaction have been complied with;
provided, however, that clauses (iii) and (iv) above do not apply
if, in the good faith determination of the Board of Directors of
the Company, whose determination shall be evidenced by a Board
Resolution, the principal purpose of such transaction is to
change the state of incorporation of the Company; and provided
further that any such transaction shall not have as one of its
purposes the evasion of the foregoing limitations.
SECTION 5.02. Successor Substituted. Upon any
consolidation or merger, or any sale, conveyance, transfer, lease
or other disposition of all or substantially all of the property
and assets of the Company in accordance with Section 5.01 of this
Indenture, the successor Person formed by such consolidation or
into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall
succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same
<PAGE>
effect as if such successor Person had been named as the Company
herein.
ARTICLE SIX
Default and Remedies
SECTION 6.01. Events of Default. An "Event of
Default" shall occur with respect to the Notes if:
(a) the Company defaults in the payment of the
principal of (or premium, if any, on) any Note when the same
becomes due and payable at maturity, upon acceleration,
redemption or otherwise, whether or not such payment is
prohibited by Article Ten;
(b) the Company defaults in the payment of interest on
any Note when the same becomes due and payable, and such
default continues for a period of 30 days, whether or not
such payment is prohibited by Article Ten;
(c) the Company defaults in the performance of or
breaches the provisions of Article Five or fails to make or
consummate an Offer to Purchase in accordance with
Section 4.09 or Section 4.10, whether or not such Offer to
Purchase is prohibited by Article Ten;
(d) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company in
this Indenture or under the Notes (other than a default
specified in clause (a), (b) or (c) above) and such default
or breach continues for a period of 30 consecutive days
after written notice to the Company by the Trustee or the
Holders of 25% or more in aggregate principal amount of the
Notes;
(e) there occurs with respect to any issue or issues
of Indebtedness of the Company or any Restricted Subsidiary
having an outstanding principal amount of $5 million or more
in the aggregate for all such issues of all such Persons,
whether such Indebtedness now exists or shall hereafter be
created, (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity and such Indebtedness has not
been discharged in full or such acceleration has not been
rescinded or annulled within 30 days of such acceleration
and/or (II) the failure to make a principal payment at the
final (but not any interim) fixed maturity and such
defaulted payment shall not have been made, waived or
extended within 30 days of such payment default;
(f) any final judgment or order (not covered by
insurance) for the payment of money in excess of $5 million
in the aggregate for all such final judgments or orders
against all such Persons (treating any deductibles, self-
<PAGE>
insurance or retention as not so covered) shall be rendered
against the Company or any Restricted Subsidiary and shall
not be paid or discharged, and there shall be any period of
60 consecutive days following entry of the final judgment or
order that causes the aggregate amount of all such final
judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $5 million during which a
stay of enforcement of such final judgment or order, by
reason of a pending appeal or otherwise, shall not be in
effect;
(g) a court having jurisdiction in the premises enters
a decree or order for (A) relief in respect of the Company
or any Restricted Subsidiary in an involuntary case under
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary
or for all or substantially all of the property and assets
of the Company or any Restricted Subsidiary or (C) the
winding up or liquidation of the affairs of the Company or
any Restricted Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(h) the Company or any Restricted Subsidiary (A)
commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary
or for all or substantially all of the property and assets
of the Company or any Restricted Subsidiary or (C) effects
any general assignment for the benefit of creditors.
SECTION 6.02. Acceleration. If an Event of Default
(other than an Event of Default specified in clause (g) or (h) of
Section 6.01 that occurs with respect to the Company) occurs and
is continuing under this Indenture, the Trustee or the Holders of
at least 25% in aggregate principal amount of the Notes then
outstanding, by written notice to the Company (and to the Trustee
if such notice is given by the Holders (the "Acceleration
Notice")), may, and the Trustee at the request of such Holders
shall, declare the principal of, premium, if any, and accrued
interest on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal of, premium, if any,
and accrued interest shall be immediately due and payable. In
the event of a declaration of acceleration because an Event of
Default set forth in clause (e) of Section 6.01 has occurred and
is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default
triggering such Event of Default pursuant to clause (e) shall be
remedied or cured by the Company or the relevant Restricted
Subsidiary or waived by the holders of the relevant Indebtedness
within 30 days after the declaration of acceleration with respect
<PAGE>
thereto. If an Event of Default specified in clause (g) or (h)
of Section 6.01 occurs with respect to the Company, the principal
of, premium, if any, and accrued interest on the Notes then
outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration,
but before a judgment or decree for the payment of the money due
has been obtained by the Trustee, the Holders of at least a
majority in principal amount of the outstanding Notes by written
notice to the Company and to the Trustee may waive all past
Defaults and rescind and annul a declaration of acceleration and
its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal of, premium, if any, and
accrued interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived and
(ii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment
of principal of, premium, if any, or interest on the Notes or to
enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in
the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to
Sections 6.02, 6.07 and 9.02, the Holders of at least a majority
in principal amount of the outstanding Notes, by notice to the
Trustee, may waive an existing Default or Event of Default and
its consequences, except a Default in the payment of principal
of, premium, if any, or interest on any Note as specified in
clause (a) or (b) of Section 6.01 or in respect of a covenant or
provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Note
affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at
least a majority in aggregate principal amount of the outstanding
Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided that the
Trustee may refuse to follow any direction that conflicts with
law or this 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 not joining in the
giving of such direction; and provided further that the Trustee
may take any other action it deems proper that is not
<PAGE>
inconsistent with any such direction received from Holders of
Notes pursuant to this Section 6.05.
SECTION 6.06. Limitation on Suits. A Holder may not
institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Notes, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee
written notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal
amount of outstanding Notes shall have made written request
to the Trustee to pursue the remedy;
(iii) such Holder or 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;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to comply
with such request; and
(v) 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.
For purposes of Section 6.05 of this Indenture and this
Section 6.06, the Trustee shall comply with TIA Section 316(a) in
making any determination of whether the Holders of the required
aggregate principal amount of outstanding Notes have concurred in
any request or direction of the Trustee to pursue any remedy
available to the Trustee or the Holders with respect to this
Indenture or the Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority
over such other Holder.
The limitations set forth in this Section 6.06 shall
not apply to the right of any Holder of a Note to receive payment
of the principal of, premium, if any, or interest on, such Note
or to bring suit for the enforcement of any such payment, on or
after the due date expressed in the Notes, which right shall not
be impaired or affected without the consent of the Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of the principal of,
premium, if any, or interest on such Holder's Note on or after
the respective due dates expressed on such Note, or to bring suit
for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
consent of such Holder.
<PAGE>
SECTION 6.08. Collection Suit by Trustee. If an Event
of Default in payment of principal, premium, if any, or interest
specified in clause (a) or (b) of Section 6.01 occurs and is
continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other
obligor of the Notes for the whole amount of principal, premium,
if any, and accrued interest remaining unpaid, together with
interest on overdue principal, premium, if any, and, to the
extent that payment of such interest is lawful, interest on
overdue installments of interest, in each case at the rate
specified in the Notes, and such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.06) and the Holders allowed in any
judicial proceedings relative to the Company (or any other
obligor of the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon
conversion or exchange of the Notes or upon any such claims and
to distribute the same, and 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, in the event that the
Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.06. Nothing herein contained shall 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 Six, it shall pay out the money in
the following order:
First: to the Trustee for amounts due under
Section 7.06;
Second: to the holders of Senior Indebtedness, as and
to the extent required by Article Ten;
Third: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest on the Notes in
respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of
<PAGE>
any kind, according to the amounts due and payable on such Notes
for principal, premium, if any, and interest, respectively; and
Fourth: to the Company or any other obligors of the
Notes, as their interests may appear, or as a court of
competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company,
may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for
the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by
it as Trustee, a court may require any party litigant in such
suit to file an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims
or defenses made by the party litigant. This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 6.07 of this Indenture, or a suit by Holders of more
than 25% in principal amount of the outstanding Notes.
SECTION 6.12. Restoration of Rights and Remedies. If
the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Company,
Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except
as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or wrongfully taken Notes in
Section 2.09, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 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 shall impair any
such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given
by this Article Six 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.
<PAGE>
ARTICLE SEVEN
Trustee
SECTION 7.01. Rights of Trustee. (a) Except during
the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and certificates or opinions furnished to it and
conforming to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(c) No provision of this 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, except that:
(i) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(ii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a
majority in principal amount of the outstanding Notes,
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 this Indenture with respect to the Notes.
(d) Subject to TIA Sections 315(a) through (d):
(i) the Trustee may rely upon any document believed by
it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or
matter stated in the document;
(ii) before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Section 11.04. The Trustee
shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion;
<PAGE>
(iii) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance
with such request or direction;
(iv) the Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within its rights or powers; provided that the
Trustee's conduct does not constitute negligence or bad
faith;
(v) no provision of the Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it;
(vi) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed), may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(vii) the Trustee may consult with counsel and the
advice of such counsel or any opinion of counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(viii) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled, during normal business hours and upon
reasonable advance notice to the Company, to examine the
books, records and premises of the Company, personally or by
agent or attorney;
(ix) the Trustee may execute any of the trusts or
powers hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
<PAGE>
(x) the Trustee shall not be deemed to have notice of
the occurrence of a Change of Control or of events which
would require an Offer to Purchase until such time as the
Trustee receives notice thereof from the Company as required
in Sections 4.09 and 4.10, respectively.
SECTION 7.02. 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 TIA Sections 310(b) and 311.
SECTION 7.03. Trustee's Disclaimer. The Trustee
(i) makes no representation as to the validity or adequacy of
this Indenture or the Notes, (ii) shall not be accountable for
the Company's use or application of the proceeds from the Notes
and (iii) shall not be responsible for any statement in the Notes
other than its certificate of authentication.
SECTION 7.04. Notice of Default. If any Default or
any Event of Default occurs and is continuing and if such Default
or Event of Default is known to the Trustee, the Trustee shall
mail to each Holder in the manner and to the extent provided in
TIA Section 313(c) notice of the Default or Event of Default
within 45 days after it occurs, unless such Default or Event of
Default has been cured; provided, however, that, except in the
case of a default in the payment of the principal of, premium, if
any, or interest on any Note, the Trustee shall be protected in
withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
SECTION 7.05. Reports by Trustee to Holders. Within
60 days after each May 15, beginning with May 15, 1997, the
Trustee shall mail to each Holder as provided in TIA Section
313(c) a brief report dated as of such May 15, if required by TIA
Section 313(a).
SECTION 7.06. Compensation and Indemnity. The Company
shall pay to the Trustee such compensation as shall be agreed
upon in writing for its services. The compensation of the
Trustee shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses
and advances incurred or made by it. Such expenses shall include
the reasonable compensation and expenses of the Trustee's agents
and counsel.
The Company shall 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 in connection with
the acceptance or administration of this Indenture and its duties
under this Indenture and the Notes, including the costs and
expenses of defending itself against any claim or liability and
of complying with any process served upon it or any of its
<PAGE>
officers in connection with the exercise or performance of any of
its powers or duties under this Indenture and the Notes. The
Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company
shall pay reasonable fees and expenses of such counsel. The
Company need not pay for any settlements made without its
consent; provided that such consent shall not be unreasonably
withheld. The Company need not reimburse any expense or
indemnify or hold harmless against any loss or liability incurred
by the Trustee through negligence or bad faith.
The Trustee shall have a claim prior to the Notes on
all money or property held or collected by the Trustee, in its
capacity as Trustee, for any amount owing it pursuant to this
Section 7.06, except money or property held in trust to pay
principal of, premium, if any, and interest on particular Notes.
If the Trustee incurs expenses or renders services
after the occurrence of an Event of Default specified in clause
(g) or (h) of Section 6.01, the expenses and the compensation for
the services will be intended to constitute expenses of
administration under Title 11 of the United States Bankruptcy
Code or any applicable federal or state law for the relief of
debtors.
The provisions of this Section 7.06 shall survive the
termination of this Indenture.
SECTION 7.07. Replacement of Trustee. A resignation
or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.07.
The Trustee may resign by so notifying the Company in
writing at least 30 days prior to the date of the proposed
resignation. The Holders of a majority in principal amount of
the outstanding Notes may remove the Trustee by so notifying the
Trustee in writing and may appoint a successor Trustee with the
consent of the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.09;
(ii) the Trustee is adjudged a bankrupt or an
insolvent;
(iii) a receiver or other public officer takes charge
of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy
exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the outstanding Notes may appoint a successor
<PAGE>
Trustee to replace the successor Trustee appointed by the
Company. If the successor Trustee does not deliver its written
acceptance pursuant to this Section 7.07 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.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Immediately after the delivery of such written acceptance,
subject to the lien provided in Section 7.06, (i) the retiring
Trustee shall transfer all property held by it as Trustee to the
successor Trustee, (ii) the resignation or removal of the
retiring Trustee shall become effective and (iii) the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
If the Trustee fails to comply with Section 7.09, any
Holder who satisfies the requirements of TIA Section 310(b) may
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
The Company shall give written notice of any
resignation and any removal of the Trustee and each appointment
of a successor Trustee to all Holders and the Lender Agent. Each
notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to
this Section 7.07, the Company's obligation under Section 7.06
shall continue for the benefit of the retiring Trustee.
SECTION 7.08. Successor Trustee by Merger, Etc. 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 shall be the
successor Trustee with the same effect as if the successor
Trustee had been named as the Trustee herein.
SECTION 7.09. Eligibility. Any Trustee serving
hereunder shall (a) satisfy the requirements of TIA
Section 310(a)(1) and (b) be a bank or trust company, within or
without the state, which is authorized by law to perform all of
the duties imposed upon it hereby and which either (i) has a
reported capital and surplus aggregating at least $50,000,000 or
(ii) is a wholly owned subsidiary of a bank, a trust company or a
bank holding company having a reported capital and surplus
aggregating at least $50,000,000.
<PAGE>
SECTION 7.10. Money Held in Trust. The Trustee shall
not be liable for interest on any money received by it except as
the Trustee 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 Eight of this Indenture.
ARTICLE EIGHT
Discharge of Indenture
SECTION 8.01. Termination of Company's Obligations.
Except as otherwise provided in this Section 8.01, the Company
may terminate its obligations under the Notes and this Indenture
if:
(i) all Notes previously authenticated and delivered
(other than destroyed, lost or stolen Notes that have been
replaced or Notes that are paid pursuant to Section 4.01 or
Notes for whose payment money or securities have theretofore
been held in trust and thereafter repaid to the Company, as
provided in 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 have become due and payable, 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, (B) the
Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an
irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the
benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee), without consideration of any reinvestment of
any interest thereon, to pay principal, premium, if, any,
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 or Event of Default with respect
to the Notes shall have occurred and be continuing on the
date of such deposit, (D) such deposit will not result in a
breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound and (E) 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 satisfaction and discharge of this Indenture have
been complied with.
<PAGE>
With respect to the foregoing clause (i), the Company's
obligations under Section 7.06 shall survive. With respect to
the foregoing clause (ii), the Company's obligations in Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02,
7.06, 7.07, 8.04, 8.05, 8.06 and Article Ten (with respect to
payments in respect of Senior Subordinated Obligations other than
with the assets held in trust with the Trustee as described in
the foregoing clause (ii)) shall survive until the Notes are no
longer outstanding. Thereafter, only the Company's obligations
in Sections 7.06, 8.04, 8.05 and 8.06 shall survive. After any
such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations
under the Notes and this Indenture except for those surviving
obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture.
The Company will be deemed to have paid and will be discharged
from any and all obligations in respect of the Notes on the 123rd
day after the date of the deposit referred to in clause (i) of
this Section 8.02, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee,
at the expense of the Company, shall execute proper instruments
acknowledging the same, except as to (A) rights of registration
of transfer and exchange, (B) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Notes, (C) rights
of Holders to receive payments of principal thereof and interest
thereon, (D) the Company's obligations under Section 4.02, (E)
the rights, obligations and immunities of the Trustee hereunder
and (F) the rights of the Holders as beneficiaries of this
Indenture with respect to the property so deposited with the
Trustee payable to all or any of them; provided that the
following conditions shall have been satisfied:
(i) with reference to this Section 8.02, the Company
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying
the requirements of Section 7.09) and conveyed all right,
title and interest for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in
trust, specifically pledged to the Trustee for the benefit
of the Holders as security for payment of the principal of,
premium, if any, and interest, if any, on the Notes, and
dedicated solely to, the benefit of the Holders, in and to
(1) money in an amount, (2) U.S. Government Obligations
that, through the payment of interest, premium, if any, and
principal in respect thereof in accordance with their terms,
will provide, not later than one day before the due date of
any payment referred to in this clause (i), money in an
amount or (3) a combination thereof in an amount sufficient,
in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof
payable by the Trustee, the principal of, premium, if any,
<PAGE>
and accrued interest on the outstanding Notes at the Stated
Maturity of such principal or interest; provided that the
Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to
the payment of such principal, premium, if any, and interest
with respect to the Notes;
(ii) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is
a party or by which it is bound and is permitted by Article
Ten;
(iii) immediately after giving effect to such deposit
on a pro forma basis, no Default or Event of Default shall
have occurred and be continuing on the date of such deposit
or during the period ending on the 123rd day after such date
of deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under, any other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(iv) the Company shall have delivered to the Trustee
(1) either (x) a ruling directed to the Trustee 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 Company's exercise of
its option under this Section 8.02 and will be subject to
federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such
option had not been exercised or (y) an Opinion of Counsel
to the same effect as the ruling described in clause (x)
above based upon and accompanied by a ruling to that effect
published by the Internal Revenue Service, unless there has
been a change in the applicable federal income tax law since
the date of this Indenture such that a ruling from the
Internal Revenue Service is no longer required and (2) an
Opinion of Counsel to the effect that (x) the creation of
the defeasance trust does not violate the Investment Company
Act of 1940 and (y) after the passage of 123 days following
the deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider"
for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be
subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company
under either such statute, and either (I) the trust funds
will no longer remain the property of the Company (and
therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally) or (II) if a
court were to rule under any such law in any case or
proceeding that the trust funds remained property of the
Company, (a) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the
<PAGE>
extent not paid to the Holders, the Trustee will hold, for
the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not voidable in
bankruptcy or otherwise except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on
the trust funds accruing after the commencement of a case
under such statute and (b) the Holders will be entitled to
receive adequate protection of their interests in such trust
funds if such trust funds are used in such case or
proceeding;
(v) if the Notes are then listed on a national
securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such
deposit defeasance and discharge will not cause the Notes to
be delisted; and
(vi) 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 contemplated by this
Section 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the
123-day (or one year) period referred to in clause (iv)(2)(y) of
this Section 8.02, none of the Company's obligations under this
Indenture shall be discharged. Subsequent to the end of such
123-day (or one year) period with respect to this Section 8.02,
the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.06, 7.07, 8.04, 8.05,
8.06 and Article Ten (with respect to payments in respect of
Senior Subordinated Obligations other than with the assets held
in trust as described in this Section 8.02) shall survive until
the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.06, 8.05 and 8.06 shall
survive. If and when a ruling from the Internal Revenue Service
or an Opinion of Counsel referred to in clause (iv)(1) of this
Section 8.02 is able to be provided specifically without regard
to, and not in reliance upon, the continuance of the Company's
obligations under Section 4.01, then the Company's obligations
under such Section 4.01 shall cease upon delivery to the Trustee
of such ruling or Opinion of Counsel and compliance with the
other conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the
Company's obligations under the Notes and this Indenture except
for those surviving obligations in the immediately preceding
paragraph.
SECTION 8.03. Defeasance of Certain Obligations. The
Company may omit to comply with any term, provision or condition
set forth in clauses (iii) and (iv) of Section 5.01 and Sections
4.03 through 4.16, and clause (c) of Section 6.01 with respect to
clauses (iii) and (iv) of Section 5.01 and Sections 4.09 through
4.10, clause (d) of Section 6.01 with respect to Sections 4.03
<PAGE>
through 4.16, and clauses (e) and (f) of Section 6.01 shall be
deemed not to be Events of Default, and Article Ten shall not
apply to the money and/or U.S. Government Obligations held by the
trust referred to in clause (i) below, in each case with respect
to the outstanding Notes if:
(i) with reference to this Section 8.03, the Company
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying
the requirements of Section 7.09) and conveyed all right,
title and interest to the Trustee for the benefit of the
Holders, under the terms of an irrevocable trust agreement
in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the
principal of, premium, if any, and interest, if any, on the
Notes, and dedicated solely to, the benefit of the Holders,
in and to (A) money in an amount, (B) U.S. Government
Obligations that, through the payment of interest and
principal in respect thereof in accordance with their terms,
will provide, not later than one day before the due date of
any payment referred to in this clause (i), money in an
amount or (C) a combination thereof in an amount sufficient,
in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof
payable by the Trustee, the principal of, premium, if any,
and interest on the outstanding Notes on the Stated Maturity
of such principal or interest; provided that the Trustee
shall have been irrevocably instructed to apply such money
or the proceeds of such U.S. Government Obligations to the
payment of such principal, premium, if any, and interest
with respect to the Notes;
(ii) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is
a party or by which it is bound and is permitted by Article
Ten;
(iii) immediately after giving effect to such deposit
on a pro forma basis, no Default or Event of Default shall
have occurred and be continuing on the date of such deposit
or during the period ending on the 123rd day after such date
of deposit, and such deposit shall not result in a breach or
violation of, or constitute a default under, any other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(iv) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that (A) the creation of
the defeasance trust does not violate the Investment Company
Act of 1940, (B) the Holders have a valid security interest
<PAGE>
in the trust funds, (C) the Holders will not recognize
income, gain or loss for federal income tax purposes as a
result of such deposit and defeasance of certain obligations
and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not
occurred and (D) after the passage of 123 days following the
deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider"
for purposes of the United States Bankruptcy Code, after one
year following the deposit), the trust funds will not be
subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company
under either such statute, and either (1) the trust funds
will no longer remain the property of the Company (and
therefore will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally) or (2) if a
court were to rule under any such law in any case or
proceeding that the trust funds remained property of the
Company, (x) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the
extent not paid to the Holders, the Trustee will hold, for
the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not voidable in
bankruptcy or otherwise (except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on
the trust funds accruing after the commencement of a case
under such statute), (y) the Holders will be entitled to
receive adequate protection of their interests in such trust
funds if such trust funds are used in such case or
proceeding and (z) no property, rights in property or other
interests granted to the Trustee or the Holders in exchange
for, or with respect to, such trust funds will be subject to
any prior rights of holders of other Indebtedness of the
Company or any of its Subsidiaries;
(v) if the Notes are then listed on a national
securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such
deposit defeasance and discharge will not cause the Notes to
be delisted; and
(vi) 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 contemplated by this
Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money. Subject to
Sections 8.05 and 8.06, the Trustee or Paying Agent shall hold in
trust money or U.S. Government Obligations deposited with it
pursuant to Section 8.01, 8.02 or 8.03, as the case may be, and
shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Notes and this
Indenture to the payment of principal of, premium, if any, and
interest on the Notes; but such money need not be segregated from
other funds except to the extent required by law.
<PAGE>
SECTION 8.05. Repayment to Company. Subject to
Sections 7.06, 8.01, 8.02 and 8.03, the Trustee and the Paying
Agent shall promptly pay to the Company upon request set forth in
an Officers' Certificate any excess money held by them at any
time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall
pay to the Company upon request any money held by them for the
payment of principal, premium, if any, or interest that remains
unclaimed for two years; provided that the Trustee or such Paying
Agent before being required to make any payment may cause to be
published at the expense of the Company once in a newspaper of
general circulation in the City of New York or mail to each
Holder entitled to such money at such Holder's address (as set
forth in the Security Register) notice that such money remains
unclaimed and that after a date specified therein (which shall be
at least 30 days from the date of such publication or mailing)
any unclaimed balance of such money then remaining will be repaid
to the Company. After payment to the Company, Holders entitled
to such money must look to the Company for payment as general
creditors unless an applicable law designates another Person, and
all liability of the Trustee and such Paying Agent with respect
to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying
Agent is unable to apply any money or U.S. Government Obligations
in accordance with Section 8.01, 8.02 or 8.03, as the case may
be, 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 this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant
to Section 8.01, 8.02 or 8.03, as the case may be, until such
time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be; provided that, if
the Company has made any payment of principal of, premium, if
any, or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
Amendments, Supplements and Waivers
SECTION 9.01. Without Consent of Holders. The
Company, when authorized by a resolution of its Board of
Directors, and the Trustee may amend or supplement this Indenture
or the Notes without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
provided that such amendments or supplements shall not
adversely affect the interests of the Holders;
(2) to comply with Article Five;
<PAGE>
(3) to comply with any requirements of the Commission
in connection with the qualification of this Indenture under
the TIA;
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee;
(5) to make any change that does not adversely affect
the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to
Sections 6.04 and 6.07 and without prior notice to the Holders,
the Company, when authorized by its Board of Directors (as
evidenced by a Board Resolution), and the Trustee may amend this
Indenture and the Notes with the written consent of the Holders
of not less than a majority in principal amount of the Notes then
outstanding, and the Holders of not less than a majority in
principal amount of the Notes then outstanding by written notice
to the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02,
without the consent of each Holder affected, an amendment or
waiver, including a waiver pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or
any installment of interest on, any Note, or reduce the
principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or
adversely affect any right of repayment at the option of any
Holder of any Note, or change any place of payment where, or
the currency in which, any Note or any premium or the
interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount of
outstanding Notes the consent of whose Holders is required
for any such supplemental indenture, for any waiver of
compliance with certain provisions of this Indenture or
certain Defaults and their consequences provided for in this
Indenture;
(iii) waive a Default in the payment of principal of,
premium, if any, or interest on, any Note;
(iv) modify any of the provisions of this Section 9.02,
except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
outstanding Note affected thereby; or
(v) modify any of the provisions of Article Ten (or
the definition of Senior Indebtedness) in a manner adverse
to the Holders.
<PAGE>
It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form of
any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.02 becomes effective, the Company shall mail to the
Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of
the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any
such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until
an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same
debt as the Note of the consenting Holder, even if notation of
the consent is not made on any Note. However, any such Holder or
subsequent Holder may revoke the consent as to its Note or
portion of its Note. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective. An amendment,
supplement or waiver shall become effective on receipt by the
Trustee of written consents from the Holders of the requisite
percentage in principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled
to consent to any amendment, supplement or waiver. If a record
date is fixed, then, notwithstanding the last two sentences of
the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies)
and only those persons shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Holder unless it is of the type
described in any of clauses (i) through (v) of Section 9.02. In
case of an amendment or waiver of the type described in clauses
(i) through (v) of Section 9.02, the amendment or waiver shall
bind each Holder who has consented to it and every subsequent
Holder of a Note that evidences the same indebtedness as the Note
of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes. If an
amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder and the Trustee may
place an appropriate notation on any Note thereafter
authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and
<PAGE>
the Trustee shall authenticate a new Note that reflects the
changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The
Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized
pursuant to this Article Nine is authorized or permitted by this
Indenture. Subject to the preceding sentence, the Trustee shall
sign such amendment, supplement or waiver if the same does not
affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the TIA as then in
effect.
ARTICLE TEN
Subordination of Notes
SECTION 10.01. Notes Subordinated to Senior
Indebtedness. The Company and the Trustee each covenants and
agrees, and each Holder, by its acceptance of a Note, likewise
covenants and agrees that all Notes shall be issued subject to
the provisions of this Article Ten; and each Person holding any
Note, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees that the Notes shall, to the
extent and in the manner set forth in this Article Ten, be
unsecured, general obligations of the Company, subordinated in
right of payment to all existing and future Senior Indebtedness
of the Company, pari passu in right of payment with any future
senior subordinated indebtedness of the Company and senior in
right of payment to any existing or future subordinated
indebtedness of the Company.
SECTION 10.02. No Payment on Notes in Certain
Circumstances. (a) No direct or indirect payment by or on
behalf of the Company of Senior Subordinated Obligations, whether
pursuant to the terms of the Notes or upon acceleration or
otherwise, shall be made if, at the time of such payment, there
exists a default in the payment of all or any portion of the
obligations on any Senior Indebtedness, and such default shall
not have been cured or waived or the benefits of this sentence
waived by or on behalf of the holders of such Senior
Indebtedness.
(b) During the continuance of any other event of
default with respect to (i) the Credit Agreement pursuant to
which the maturity of the Company's Indebtedness thereunder may
be accelerated and (A) upon receipt by the Trustee of written
notice from the Lender Agent or (B) if such event of default
under the Credit Agreement results from the acceleration of the
Notes or a Change of Control, from and after the date of such
acceleration, no such payment of Senior Subordinated Obligations
<PAGE>
may be made by or on behalf of the Company upon or in respect of
the Notes for a period (a "Payment Blockage Period") commencing
on the earlier of the date of receipt of such notice or the date
of such acceleration and ending 179 days thereafter (unless such
Payment Blockage Period shall be terminated by written notice to
the Trustee from the Lender Agent or by repayment in full in cash
or Cash Equivalents of such Senior Indebtedness or such event of
default has been cured or waived) or (ii) any other Designated
Senior Indebtedness pursuant to which the maturity thereof may be
accelerated, upon receipt by the Trustee of written notice from
the trustee or other representative for the holders of such other
Designated Senior Indebtedness (or the holders of at least a
majority in principal amount of such other Designated Senior
Indebtedness then outstanding), no such payment of Senior
Subordinated Obligations may be made by or on behalf of the
Company upon or in respect of the Notes for a Payment Blockage
Period commencing on the date of receipt of such notice and
ending 119 days thereafter (unless, in each case, such Payment
Blockage Period shall be terminated by written notice to the
Trustee from such trustee of, or other representatives for, such
holders or by repayment in full in cash or Cash Equivalents of
such Designated Senior Indebtedness or such event of default has
been cured or waived). Notwithstanding anything in this
Indenture to the contrary, there must be 180 consecutive days in
any 360-day period in which no Payment Blockage Period is in
effect. For all purposes of this Section 10.02(b), no event of
default that existed or was continuing (it being acknowledged
that any subsequent event or condition that would give rise to an
event of default pursuant to any provision under which an event
of default previously existed or was continuing shall constitute
a new event of default for this purpose) on the date of the
commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage
Period shall be, or shall be made, the basis for the commencement
of a second Payment Blockage Period by the representative for, or
the holders of, such Designated Senior Indebtedness, whether or
not within a period of 360 consecutive days, unless such event of
default shall have been cured or waived for a period of not less
than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing,
any payment shall be received by the Trustee or any Holder when
such payment is prohibited by Section 10.02(a) or 10.02(b) of
this Indenture, the Trustee shall promptly notify the holders of
Senior Indebtedness of such prohibited payment and such payment
shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear,
but only to the extent that, upon notice from the Trustee to the
holders of Senior Indebtedness that such prohibited payment has
been made, the holders of the Senior Indebtedness (or their
representative or representatives of a trustee) within 30 days of
receipt of such notice from the Trustee notify the Trustee of the
amounts then due and owing on the Senior Indebtedness, if any,
and only the amounts specified in such notice to the Trustee
<PAGE>
shall be paid to the holders of Senior Indebtedness and any
excess above such amounts due and owing on Senior Indebtedness
shall be paid to the Company.
SECTION 10.03. Payment over Proceeds upon Dissolution,
Etc. (a) Upon any payment or distribution of assets or
securities of the Company of any kind or character, whether in
cash, property or securities, in connection with any dissolution
or winding up or total or partial liquidation or reorganization
of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings or
other marshalling of assets for the benefit of creditors, all
amounts due or to become due upon all Senior Indebtedness
(including any interest accruing subsequent to an event specified
in Sections 6.01(g) and 6.01(h) of this Indenture, whether or not
such interest is an allowed claim enforceable against the debtor
under the United States Bankruptcy Code) shall first be paid in
full, in cash or Cash Equivalents, before the Holders or the
Trustee on their behalf shall be entitled to receive any payment
by the Company on account of Senior Subordinated Obligations, or
any payment to acquire any of the Notes for cash, property or
securities, or any distribution with respect to the Notes of any
cash, property or securities. Before any payment may be made by,
or on behalf of, the Company on any Senior Subordinated
Obligations in connection with any such dissolution, winding up,
liquidation or reorganization, any payment or distribution of
assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the Holders or
the Trustee on their behalf would be entitled, but for the
provisions of this Article Ten, shall be made by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person making such payment or
distribution, or by the Holders or the Trustee if received by
them or it, directly to the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders) or their
representatives or to any trustee or trustees under any other
indenture pursuant to which any such Senior Indebtedness may have
been issued, as their respective interests appear, to the extent
necessary to pay all such Senior Indebtedness in full, in cash or
Cash Equivalents, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such
Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness
(whether by or on behalf of the Company, as proceeds of security
or enforcement of any right of setoff or otherwise) is declared
to be fraudulent or preferential, set aside or required to be
paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then if such
payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar
Person, the Senior Indebtedness or part thereof originally
intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. To the extent
the obligation to repay any Senior Indebtedness is declared to be
<PAGE>
fraudulent, invalid, or otherwise set aside under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law,
then the obligation so declared fraudulent, invalid or otherwise
set aside (and all other amounts that would come due with respect
thereto had such obligation not been affected) shall be deemed to
be reinstated and outstanding as Senior Indebtedness for all
purposes hereof as if such declaration, invalidity or setting
aside had not occurred.
(c) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, any payment
or distribution of assets or securities of the Company of any
kind or character, whether in cash, property or securities, shall
be received by the Trustee or any Holder at a time when such
payment or distribution is prohibited by Section 10.03(a) of this
Indenture and before all obligations in respect of Senior
Indebtedness are paid in full, in cash or Cash Equivalents, such
payment or distribution shall be received and held in trust for
the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness (pro rata to such holders on the
basis of such respective amount of Senior Indebtedness held by
such holders) or their representatives, or to the trustee or
trustees under any indenture pursuant to which any such Senior
Indebtedness may have been issued, as their respective interests
appear, for application to the payment of Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid
in full, in cash or Cash Equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for
the holders of such Senior Indebtedness.
(d) For purposes of this Section 10.03, the words
"cash, property or securities" shall not be deemed to include, so
long as the effect of this clause is not to cause the Notes to be
treated in any case or proceeding or similar event described in
this Section 10.03 as part of the same class of claims as the
Senior Indebtedness or any class of claims pari passu with, or
senior to, the Senior Indebtedness for any payment or
distribution, securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment that are
subordinated, at least to the extent that the Notes are
subordinated, to the payment of all Senior Indebtedness then
outstanding; provided that (1) if a new corporation results from
such reorganization or readjustment, such corporation assumes the
Senior Indebtedness and (2) the rights of the holders of the
Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or
dissolution of the Company following the sale, conveyance,
transfer, lease or other disposition of all or substantially all
of its property and assets to another corporation upon the terms
and conditions provided in Article Five of this Indenture shall
not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 10.03 if such
other corporation shall, as a part of such consolidation, merger,
<PAGE>
sale, conveyance, transfer, lease or other disposition, comply
(to the extent required) with the conditions stated in Article
Five of this Indenture.
SECTION 10.04. Subrogation. (a) Upon the payment in
full of all Senior Indebtedness in cash or Cash Equivalents, the
Holders shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company made on such Senior
Indebtedness until the principal of, premium, if any, and
interest on the Notes shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or
securities to which the Holders or the Trustee on their behalf
would be entitled except for the provisions of this Article Ten,
and no payment pursuant to the provisions of this Article Ten to
the holders of Senior Indebtedness by Holders or the Trustee on
their behalf shall, as between the Company, its creditors other
than holders of Senior Indebtedness, and the Holders, be deemed
to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this
Article Ten are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders
of the Senior Indebtedness, on the other hand.
(b) If any payment or distribution to which the
Holders would otherwise have been entitled but for the provisions
of this Article Ten shall have been applied, pursuant to the
provisions of this Article Ten, to the payment of all amounts
payable under Senior Indebtedness, then, and in such case, the
Holders shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount
required to make payment in full, in cash or Cash Equivalents, of
such Senior Indebtedness of such holders.
SECTION 10.05. Obligations of Company Unconditional.
(a) Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as
among the Company and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the
principal of, premium, if any, and interest on the Notes as and
when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or
therein prevent the Holders or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article Ten of the holders of the Senior Indebtedness.
(b) Without limiting the generality of the foregoing,
nothing contained in this Article Ten will restrict the right of
the Trustee or the Holders to take any action to declare the
Notes to be due and payable prior to their Stated Maturity
pursuant to Section 6.01 of this Indenture or to pursue any
rights or remedies hereunder; provided, however, that all Senior
<PAGE>
Indebtedness then due and payable or thereafter declared to be
due and payable shall first be paid in full, in cash or Cash
Equivalents, before the Holders or the Trustee are entitled to
receive any direct or indirect payment from the Company of Senior
Subordinated Obligations.
SECTION 10.06. Notice to Trustee. (a) The Company
shall give prompt written notice to the Trustee of any fact known
to the Company that would prohibit the making of any payment to
or by the Trustee in respect of the Notes pursuant to the
provisions of this Article Ten. The Trustee shall not be charged
with the knowledge of the existence of any default or event of
default with respect to any Senior Indebtedness or of any other
facts that would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall have received notice
in writing at its Corporate Trust Office to that effect signed by
an Officer of the Company, or by a holder of Senior Indebtedness
or trustee or agent thereof; and prior to the receipt of any such
written notice, the Trustee shall, subject to Article Seven, be
entitled to assume that no such facts exist; provided that, if
the Trustee shall not have received the notice provided for in
this Section 10.06 at least two Business Days prior to the date
upon which, by the terms of this Indenture, any monies shall
become payable for any purpose (including, without limitation,
the payment of the principal of, premium, if any, or interest on
any Note), then, notwithstanding anything herein to the contrary,
the Trustee shall have full power and authority to receive any
monies from the Company and to apply the same to the purpose for
which they were received, and shall not be affected by any notice
to the contrary that may be received by it on or after such prior
date except for an acceleration of the Notes prior to such
application. Nothing contained in this Section 10.06 shall limit
the right of the holders of Senior Indebtedness to recover
payments as contemplated by this Article Ten. The foregoing
shall not apply if the Paying Agent is the Company. The Trustee
shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder
of any Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has
been given by a holder of such Senior Indebtedness or a trustee
or representative on behalf of any such holder.
(b) In the event that the Trustee determines in good
faith that any evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article Ten, the
Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this
Article Ten and, if such evidence is not furnished to the
Trustee, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive
such payment.
<PAGE>
SECTION 10.07. Reliance on Judicial Order or
Certificate of Liquidating Agent. Upon any payment or
distribution of assets or securities referred to in this Article
Ten, the Trustee and the Holders shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction
in which bankruptcy, dissolution, winding up, liquidation or
reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person making such payment or distribution,
delivered to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Ten.
SECTION 10.08. Trustee's Relation to Senior
Indebtedness. (a) The Trustee and any Paying Agent shall be
entitled to all the rights set forth in this Article Ten with
respect to any Senior Indebtedness that may at any time be held
by it in its individual or any other capacity to the same extent
as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of
its rights as such holder.
(b) With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically
set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness (except as provided in Sections
10.02(c) and 10.03(c) of this Indenture) and shall not be liable
to any such holders if the Trustee shall in good faith mistakenly
pay over or distribute to Holders of Notes or to the Company or
to any other person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of
this Article Ten or otherwise.
SECTION 10.09. Subordination Rights Not Impaired by
Acts or Omissions of the Company or Holders of Senior
Indebtedness. No right of any present or future holders of any
Senior Indebtedness to enforce subordination as provided in this
Article Ten will at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any such holder, or by
any noncompliance by the Company with the terms of this
Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with. The provisions of
this Article Ten are intended to be for the benefit of, and shall
be enforceable directly by, the holders of Senior Indebtedness.
<PAGE>
SECTION 10.10. Holders Authorize Trustee to Effectuate
Subordination of Notes. Each Holder by his acceptance of any
Notes authorizes and expressly directs the Trustee on his behalf
to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Ten, and
appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in
bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the property and assets
of the Company, the filing of a claim for the unpaid balance of
its Notes in the form required in those proceedings. If the
Trustee does not file a proper claim or proof of indebtedness in
the form required in such proceeding at least 30 days before the
expiration of the time to file such claim or claims, each holder
of Senior Indebtedness is hereby authorized to file an
appropriate claim for and on behalf of the Holders.
SECTION 10.11. Not to Prevent Events of Default. The
failure to make a payment on account of principal of, premium, if
any, or interest on the Notes by reason of any provision of this
Article Ten will not be construed as preventing the occurrence of
an Event of Default.
SECTION 10.12. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the
Trustee pursuant to other sections of this Indenture, including
Section 7.06.
SECTION 10.13. No Waiver of Subordination Provisions.
Without in any way limiting the generality of Section 10.09, the
holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Holders and
without impairing or releasing the subordination provided in this
Article Ten or the obligations hereunder of the Holders to the
holders of Senior Indebtedness, do any one or more of the
following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding or
secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the
collection of Senior Indebtedness; and (d) exercise or refrain
from exercising any rights against the Company and any other
Person.
SECTION 10.14. Payments May Be Paid Prior to
Dissolution. Nothing contained in this Article Ten or elsewhere
in this Indenture shall prevent (i) the Company except under the
conditions described in Section 10.02 or 10.03, from making
payments of principal of, premium, if any, and interest on the
Notes, or from depositing with the Trustee any money for such
payments, or (ii) the application by the Trustee of any money
deposited with it for the purpose of making such payments of
<PAGE>
principal of, premium, if any, and interest on the Notes to the
holders entitled thereto unless, at least two Business Days prior
to the date upon which such payment becomes due and payable, the
Trustee shall have received the written notice provided for in
Section 10.02(b) of this Indenture (or there shall have been an
acceleration of the Notes prior to such application) or in
Section 10.06 of this Indenture. The Company shall give prompt
written notice to the Trustee of any dissolution, winding up,
liquidation or reorganization of the Company.
SECTION 10.15. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from money or the proceeds of U.S. Government
Obligations held in trust under Article Eight by the Trustee for
the payment of principal of, premium, if any, and interest on the
Notes shall not be subordinated to the prior payment of any
Senior Indebtedness (provided that at the time deposited, such
deposit did not violate any then outstanding Senior
Indebtedness), and none of the Holders shall be obligated to pay
over any such amount to any holder of Senior Indebtedness.
ARTICLE ELEVEN
Miscellaneous
SECTION 11.01. Trust Indenture Act of 1939. Prior to
the effectiveness of the Registration Statement, this Indenture
shall incorporate and be governed by the provisions of the TIA
that are required to be part of and to govern indentures
qualified under the TIA. After the effectiveness of the
Registration Statement, this Indenture shall be subject to the
provisions of the TIA that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by
such provisions.
SECTION 11.02. Notices. Any notice or communication
shall be sufficiently given if in writing and delivered in person
or mailed by first class mail addressed as follows:
if to the Company:
Moog Inc.
East Aurora, New York 14052
Attention: Chief Financial Officer
if to the Trustee:
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Department [CT MO
0238]
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications. The Trustee shall promptly notify the
<PAGE>
Lender Agent of all changes of addresses for notices or
communications pursuant to this Section 11.02.
Any notice or communication to the Lender Agent shall
be sufficiently given if in writing and delivered in person or
mailed by first class mail addressed as follows:
Marine Midland Bank
One Marine Midland Center
Buffalo, New York 14203
Attention: Regional Commercial Banking Department
or to such additional or different addresses as the Lender Agent
may designate by notice to the Company and the Trustee.
Any notice or communication mailed to a Holder shall be
mailed to him at his address as it appears on the Security
Register by first class mail and shall be sufficiently given to
him if so mailed within the time prescribed. Copies of any such
communication or notice to a Holder shall also be mailed to the
Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect
to other Holders. Except for a notice to the Trustee, which is
deemed given only when received, and except as otherwise provided
in this Indenture, if a notice or communication is mailed in the
manner provided in this Section 11.02, it is duly given, whether
or not the addressee receives it.
SECTION 11.03. Certificate and Opinion as to
Conditions Precedent. Upon any request or application by the
Company to the Trustee to take any action under this Indenture,
the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion
of such Counsel, all such conditions precedent have been
complied with.
SECTION 11.04. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(i) a statement that each person signing such
certificate or delivering such opinion has read such
covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statement or
opinion contained in such certificate or opinion is based;
<PAGE>
(iii) a statement that, in the opinion of each such
person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(iv) a statement as to whether or not, in the opinion
of each such person, such condition or covenant has been
complied with, and such other opinions as the
Trustee may reasonably request;
provided, however, that, with respect to matters of fact, an
Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
SECTION 11.05. Acts of Holders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the
Company. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The ownership of Notes shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Note
shall bind every future Holder of the same Note or the Holder of
every Note issued upon the transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of
such action is made upon such Note.
(d) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent,
waiver or other act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for
the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or
other act, but the Company shall have no obligation to do so.
Notwithstanding Trust Indenture Act Section 316(c), any such
record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not more than 30
days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation
is completed.
<PAGE>
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act
may be given before or after such record date, but only the
Holders of record at the close of business on such record date
shall be deemed to be Holders for purposes of determining whether
Holders of the requisite proportion of Notes then outstanding
have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act,
and for this purpose the Notes then outstanding shall be computed
as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other act by
the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 11.06. Rules by Trustee, Paying Agent or
Registrar. The Trustee may make reasonable rules for action by
or at a meeting of Holders. The Paying Agent or Registrar may
make reasonable rules for its functions.
SECTION 11.07. Payment Date Other Than a Business Day.
If an Interest Payment Date, Redemption Date, Change of Control
Payment Date, Excess Proceeds Payment Date, Stated Maturity or
date of maturity of any Note shall not be a Business Day at any
place of payment, then payment of principal of, premium, if any,
or interest on such Note, as the case may be, need not be made on
such date, but may be made on the next succeeding Business Day at
such place of payment with the same force and effect as if made
on the Interest Payment Date, Change of Control Payment Date,
Excess Proceeds Payment Date, or Redemption Date, or at the
Stated Maturity or date of maturity of such Note; provided that
no interest shall accrue for the period from and after such
Interest Payment Date, Change of Control Payment Date, Excess
Proceeds Payment Date, Redemption Date, Stated Maturity or date
of maturity, as the case may be.
SECTION 11.08. Governing Law. The laws of the State
of New York shall govern this Indenture and the Notes.
SECTION 11.09. No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any
Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others. No
recourse for the payment of the principal of, premium, if any, or
interest on any of the Notes, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company contained in
this Indenture, or in any of the Notes, or because of the
creation of any Indebtedness represented thereby, shall be had
against any incorporator or against any past, present or future
partner, shareholder, other equityholder, officer, director,
employee or controlling person, as such, of the Company or of any
successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute
<PAGE>
or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture
and the issue of the Notes.
SECTION 11.11. Successors. All agreements of the
Company in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 11.12. Duplicate Originals. The parties may
sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. Separability. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.14. Table of Contents, Headings, Etc. The
Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms
and provisions hereof.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written
above.
MOOG INC.,
as Issuer
By:
Name:
Title:
FLEET NATIONAL BANK
By:
Name:
Title:
<PAGE>
EXHIBIT A
[FACE OF NOTE]
MOOG INC.
10% Senior Subordinated Notes due 2006
[CUSIP] [CINS]
No. $
MOOG INC., a New York 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
($ ) on May 1, 2006.
Interest Payment Dates: May 1 and November 1,
commencing November 1, 1996
Regular Record Dates: April 15 and October 15.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as 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
officers.
Date: MOOG INC.
By
Name:
Title:
By
Name:
Title:
(Form of Trustee's Certificate of Authentication)
This is one of the 10% Senior Subordinated Notes due 2006
described in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as Trustee
By
Authorized Signatory
<PAGE>
[REVERSE SIDE OF NOTE]
MOOG INC.
10% Senior Subordinated Note due 2006
1. Principal and Interest.
The Company will pay the principal of this Note on
May 1, 2006.
The Company promises to pay interest on the principal
amount of this Note on each Interest Payment Date, as set
forth below, at the rate per annum shown above.
Interest will be payable semiannually (to the holders
of record of the Notes at the close of business on the April
15th or October 15th immediately preceding the Interest
Payment Date) on each Interest Payment Date, commencing
November 1, 1996.
If an exchange offer registered under the Securities
Act is not consummated, or a shelf registration statement
under the Securities Act with respect to resales of the Notes
is not declared effective by the Commission, on or before
November 10, 1996 in accordance with the terms of the
Registration Rights Agreement dated May 10, 1996 between the
Company and _________________________________, the annual
interest rate borne by the Notes shall be permanently
increased by 0.5% from the rate shown above. The Holder of
this Note is entitled to the benefits of such Registration
Rights Agreement.
Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest
has been paid, from May 10, 1996; provided that, if there is
no existing default in the payment of interest and if this
Note is authenticated between a Regular Record Date referred
to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such Interest Payment Date.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal
and premium, if any, and interest on overdue installments of
interest, to the extent lawful, at a rate per annum that is 2%
in excess of the rate otherwise payable.
2. Method of Payment.
The Company will pay interest (except defaulted
interest) on the principal amount of the Notes as provided
<PAGE>
above on each May 1 and November 1 to the persons who are
Holders (as reflected in the Security Register at the close of
business on such April 15 and October 15 immediately preceding
the Interest Payment Date), in each case, even if the Note is
cancelled on registration of transfer or registration of
exchange after such record date; provided that, with respect
to the payment of principal, the Company will make payment to
the Holder that surrenders this Note to a Paying Agent on or
after May 1, 2006.
The Company will pay principal, premium, if any, and
as provided above, interest in money of the United States that
at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay principal,
premium, if any, and interest by its check payable in such
money. It may mail an interest check to a Holder's registered
address (as reflected in the Security Register). If a payment
date is a date other than a Business Day at a place of
payment, payment may be made at that place on the next
succeeding day that is a Business Day and no interest shall
accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating
agent, Paying Agent and Registrar. The Company may change any
authenticating agent, Paying Agent or Registrar without
notice. The Company, any Subsidiary or any Affiliate of any
of them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated
as of May 10, 1996 (the "Indenture"), between the Company and
Fleet National Bank (the "Trustee"). Capitalized terms 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 shall control.
The Notes are unsecured, general obligations of the
Company. The Indenture limits the original aggregate
principal amount of the Notes to $120,000,000.
5. Redemption.
The Notes will be redeemable, at the Company's
option, in whole or in part, at any time on or after May 1,
2001 and prior to maturity, upon not less than 30 nor more
than 60 days' prior notice mailed by first class mail to each
Holder's last address as it appears in the Security Register,
<PAGE>
at the following Redemption Prices (expressed in percentages
of their principal amount), plus accrued and unpaid interest,
if any, to the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date that is
on or prior to the Redemption Date to receive interest due on
an Interest Payment Date) if redeemed during the 12-month
period commencing on May 1 of the applicable year set forth
below:
Redemption
Year Price
2001 . . . . . . . . 105.0%
2002 . . . . . . . . 102.5
2003 and thereafter. 100.0
Notice of any optional redemption will be mailed at
least 30 days but not more than 60 days before the Redemption
Date to each Holder of Notes to be redeemed at his last
address as it appears in the Security Register. Notes in
original denominations larger than $1,000 may be redeemed in
part. On and after the Redemption Date, interest ceases to
accrue on Notes or portions of Notes called for redemption,
unless the Company defaults in the payment of the Redemption
Price.
6. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, the
Company must commence and consummate an Offer to Purchase all
Notes outstanding as described in the Indenture at a purchase
price in cash equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of
purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed
within 30 days after any Change of Control occurs to each
Holder at his last address as it appears in the Security
Register. Notes in original denominations larger than $1,000
may be sold to the Company in part. On and after the payment
date, interest ceases to accrue on Notes or portions of Notes
surrendered for purchase by the Company, unless the Company
defaults in the payment of the Change of Control Payment.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 of principal amount and multiples of
$1,000 in excess thereof. A Holder may register the transfer
or exchange of Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any
taxes and fees required by law or permitted by the Indenture.
The Registrar need not register the transfer or exchange of
any Notes selected for redemption. Also, it need not register
<PAGE>
the transfer or exchange of any Notes for a period of 15 days
before a selection of Notes to be redeemed is made.
8. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for
all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if
any, or interest remains unclaimed for two years, the Trustee
and the Paying Agent will pay the money back to the Company at
its request. After that, Holders entitled to the money must
look to the Company for payment, unless an abandoned property
law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall
cease.
10. Discharge Prior to Redemption or Maturity.
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 (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof,
and (b) to the Stated Maturity, the Company will be discharged
from certain covenants set forth in the Indenture.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the
Notes then outstanding, and any existing default or compliance
with any provision may be waived with the consent of the
Holders of at least a majority in principal amount of the
Notes then outstanding. Without notice to or the consent of
any Holder, the parties thereto may amend or supplement the
Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that
does not adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the
ability of the Company and its Restricted Subsidiaries, among
other things, to Incur additional Indebtedness, make
Restricted Payments, use the proceeds from Asset Sales, suffer
to exist restrictions on the ability of Restricted
Subsidiaries to make certain payments to the Company, issue
Capital Stock of Restricted Subsidiaries, engage in
transactions with Affiliates or merge, consolidate or transfer
substantially all of its assets. Each year, within 105 days
after the last day of the Company's immediately preceding
<PAGE>
fiscal year, the Company must report to the Trustee on
compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all
the obligations of its predecessor under the Notes and the
Indenture, the predecessor person will be released from those
obligations.
14. Defaults and Remedies.
The following events constitute "Events of Default"
under the Indenture: (a) default in the payment of principal
of (or premium, if any, on) any Note when the same becomes due
and payable at maturity, upon acceleration, redemption or
otherwise, whether or not such payment is prohibited by the
subordination provisions set forth in Article Ten of the
Indenture; (b) default in the payment of interest on any Note
when the same becomes due and payable, and such default
continues for a period of 30 days, whether or not such payment
is prohibited by the subordination provisions set forth in
Article Ten of the Indenture; (c) default in the performance
of or breach of the provisions of Article Five of the
Indenture or the failure to make or consummate an Offer to
Purchase in accordance with Section 4.09 or 4.10 of the
Indenture, whether or not such Offer to Purchase is prohibited
by the subordination provisions set forth in Article Ten of
the Indenture; (d) default in the performance of or breach of
any other covenant or agreement of the Company in the
Indenture or under the Notes (other than a default specified
in clause (a), (b) or (c) above) and such default or breach
continues for a period of 30 consecutive days after written
notice by the Trustee or the Holders of 25% or more in
aggregate principal amount of the Notes; (e) there occurs with
respect to any issue or issues of Indebtedness of the Company
or any Restricted Subsidiary having an outstanding principal
amount of $5 million or more in the aggregate for all such
issues of all such Persons, whether such Indebtedness now
exists or shall hereafter be created, (I) an event of default
that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated
Maturity and such Indebtedness has not been discharged in full
or such acceleration has not been rescinded or annulled within
30 days of such acceleration and/or (II) the failure to make a
principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made,
waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $5 million in the aggregate
for all such final judgments or orders against all such
Persons (treating any deductibles, self-insurance or retention
as not so covered) shall be rendered against the Company or
any Restricted Subsidiary and shall not be paid or discharged,
and there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate
amount of all such final judgments or orders outstanding and
<PAGE>
not paid or discharged against all such Persons to exceed $5
million during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; (g) a court having jurisdiction in the
premises enters a decree or order for (A) relief in respect of
the Company or any Restricted Subsidiary in an involuntary
case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (B) appointment of a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any
Restricted Subsidiary or for all or substantially all of the
property and assets of the Company or any Restricted
Subsidiary or (C) the winding up or liquidation of the affairs
of the Company or any Restricted Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (h) the Company or any
Restricted Subsidiary (A) commences a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents
to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary
or for all or substantially all of the property and assets of
the Company or any Restricted Subsidiary or (C) effects any
general assignment for the benefit of creditors.
If an Event of Default, as defined in the Indenture
(other than an Event of Default specified in clause (g) or (h)
above), 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 as provided in the
Indenture. If an Event of Default under clause (g) or (h)
above occurs, the Notes automatically become due and payable
as provided in the Indenture. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture and
acceleration of the Notes may be rescinded as provided
therein. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of at least a majority in
principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power.
15. Subordination.
The payment of the Notes will, to the extent set
forth in the Indenture, be subordinated in right of payment to
the prior payment in full, in cash or Cash Equivalents, of all
Senior Indebtedness.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual
or any other capacity, may make loans to, accept deposits from
and perform services for the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates as if it
were not the Trustee.
<PAGE>
17. No Recourse Against Others.
No recourse for the payment of the principal of,
premium, if any, or interest on any of the Notes, or for any
claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement
of the Company contained in the Indenture, or in any of the
Notes, or because of any Indebtedness represented thereby,
shall be had against any incorporator or any past, present or
future partner, shareholder, other equityholder, officer,
director, employee or controlling person, as such, of the
Company or of any successor Person thereof. Each Holder by
accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the
issuance of the Notes.
18. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication
on the other side of this Note.
19. 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 to any Holder upon written
request and without charge a copy of the Indenture. Requests
may be made to Moog Inc., East Aurora, New York 14052,
Attention: Chief Financial Officer.
<PAGE>
[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.
<PAGE>
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
LEGENDED OFFSHORE GLOBAL NOTES AND
LEGENDED OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring
prior to the date which is the earlier of (i) the date of an
effective Registration or (ii) the end of the period referred
to in Rule 144(k) under the Securities Act, the undersigned
confirms that without utilizing any general solicitation or
general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with
the exemption from registration under the Securities
Act of 1933 provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or
other Registrar shall not be 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 Section 2.08 of the Indenture shall
have been satisfied.
Date:
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is
purchasing this Note for its own account or an account with
respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities
Act of 1933 and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing
<PAGE>
representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an
executive officer
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the
Company pursuant to Section 4.09 or Section 4.10 of the
Indenture, check the Box: [ ]
If you wish to have a portion of this Note purchased
by the Company pursuant to Section 4.09 or Section 4.10 of the
Indenture, state the amount: $___________________.
Date:
Your Signature:
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ______________________________
<PAGE>
EXHIBIT B
Form of Certificate
[ , ]
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Department [CT MO 0238]
Re: Moog Inc. (the "Company")
0% Senior Subordinated Notes
due 2006 (the "Notes")
Dear Sirs:
This letter relates to U.S. $
principal amount of Notes represented by a Note (the "Legended
Note") which bears a legend outlining restrictions upon
transfer of such Legended Note. Pursuant to Section 2.01 of
the Indenture dated as of May 10, 1996 (the "Indenture")
relating to the Notes, we hereby certify that we are (or we
will hold such securities on behalf of) a person outside the
United States to whom the Notes could be transferred in
accordance with Rule 904 of Regulation S promulgated under the
U.S. Securities Act of 1933. Accordingly, you are hereby
requested to exchange the legended certificate for an
unlegended certificate representing an identical principal
amount of Notes, all in the manner provided for in the
Indenture.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative
or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
Authorized Signature
<PAGE>
EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
,
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Department [CT MO 0238]
Re: Moog Inc. (the "Company")
10% Senior Subordinated Notes
due 2006 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of $
aggregate principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set
forth in the Indenture dated as of May 10, 1996 (the
"Indenture"), relating to the Notes, and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act of 1933
(the "Securities Act").
2. We understand that the offer and sale of the
Notes have not been registered under the Securities Act, and
that the Notes may not be offered or sold except as permitted
in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Notes, we will do so only
(A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to
an institutional "accredited investor" (as defined below)
that, prior to such transfer, furnishes (or has furnished on
its behalf by a U.S. broker-dealer) to you and to the Company
a signed letter substantially in the form of this letter and,
if such transfer is in respect of an aggregate principal
amount of Notes at the time of transfer of less than $100,000,
an opinion of counsel acceptable to you and the Company that
such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the
<PAGE>
Securities Act, if available, or (F) pursuant to an effective
registration statement under the Securities Act, and we
further agree to provide to any person purchasing any of the
Notes from us a notice advising such purchaser that resales of
the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any
Notes, we will be required to furnish to you and the Company
such certifications, legal opinions and other information as
you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We
further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for
our own account or for one or more accounts (each of which is
an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative
or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
Authorized Signature
<PAGE>
EXHIBIT D
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
,
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Department [CT MO 0238]
Re: Moog Inc. (the "Company")
10% Senior Subordinated Notes
due 2006 (the "Notes")
Dear Sirs:
In connection with our proposed sale of U.S.$
aggregate principal amount of the Notes, we confirm that such
sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933 and,
accordingly, we represent that:
(1) the offer of the Notes was not made to a person
in the United States;
(2) at the time the buy order was originated, the
transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee
was outside the United States;
(3) no directed selling efforts have been made by us
in the United States in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the U.S. Securities
Act of 1933.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative
or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
<PAGE>
EXHIBIT E
FORM OF OPINION OF COUNSEL TO THE
COMPANY IN CONNECTION WITH THE AUTHENTICATION
OF EXCHANGE NOTES UNDER SECTION 2.03
The Opinion of Counsel to be delivered to the Trustee
pursuant to Section 2.03 of this Indenture in connection with
the authentication of the Exchange Notes shall be to the
effect that:
(A) The Exchange Notes have been
duly authorized and, when executed,
authenticated and delivered in accordance
with the terms of the Placement Agreement,
will be (x) valid and binding obligations of
the Company enforceable in accordance with
their terms, and (y) entitled to the
benefits of the Indenture.
(B) A Registration Statement
with respect to the Exchange Notes has been
filed with the Securities and Exchange
Commission and has been declared effective
under the Securities Act of 1933, and the
Indenture has been qualified under the Trust
Indenture Act of 1939, as amended.
<PAGE>
EXHIBIT (v)
CONSENT AND THIRD AMENDMENT TO REVOLVING AND TERM LOAN AGREEMENT
THIS AGREEMENT is made as of the 13th day of May, 1996
among the banks identified in Exhibit A attached to and made a
part of this Agreement (collectively, the "Banks") and
individually a "Bank"), Marine Midland Bank, a New York banking
corporation having its chief executive office at One Marine
Midland Center, Buffalo, New York 14203, ("Marine"), as agent for
the Banks, and Moog Inc., a New York business corporation having
its chief executive office at Jamison Road and Seneca Street,
East Aurora, New York 14052-0018, (the "Borrower").
WHEREAS, the Banks, Marine as agent for the Banks and
the Borrower previously entered into a Revolving and Term Loan
Agreement dated June 15, 1994 and a First Amendment to Revolving
and Term Loan Agreement dated as of November 14, 1995 (as so
amended, the "Loan Agreement"); and
WHEREAS, the Banks, Marine as agent for the Banks and
the Borrower now desire to amend certain terms of the Loan
Agreement; and
WHEREAS, the Banks and Marine as agent for the Banks now
desire to give their consent under the Loan Agreement to the
taking of certain actions by the Borrower;
NOW, THEREFORE, effective on the date described in
Section 5(a) of this Agreement, the Banks, Marine as agent for
the Banks and the Borrower agree as follows:
1. DEFINITIONS. Each word or expression used, but not
defined, in this Agreement shall have the meaning given it in the
Loan Agreement.
2. AMENDMENTS. Section 12(ggg-1) of the Loan
Agreement shall be amended to read in its entirety as follows:
ggg-1. Subordinated Debentures.
"Subordinated Debentures" means approximately
$120,000,000 of subordinated debentures publicly
issued by the Borrower pursuant to documents in
form and substance satisfactory to the Banks,
bearing a coupon rate of approximately 10% and the
principal amount of which is due in a single
installment 10 years after issuance.
3. CONSENTS. Section 7(b) of the Loan Agreement
provides that "the Borrower shall not, without the prior written
consent of the Required Banks . . . [c]reate, incur, assume or
have any Indebtedness (i) arising from the borrowing of any
money . . . except . . . for Permitted Indebtedness". In
<PAGE>
addition, Section 7(h) of the Loan Agreement provides that "the
Borrower shall not, without the prior written consent of the
Required Banks . . . [d]eclare, pay or make any Distribution,
except for Permitted Distributions". The Borrower has requested
the Required Banks to consent to the issuance by the Borrower of
the Subordinated Debentures and the use by the Borrower of the
proceeds of such issuance to (a) retire certain Permitted
Indebtedness consisting of the Borrower's Indebtedness to The
Northwestern Mutual Life Insurance Company aggregating
approximately $16,800,000, (b) repay in advance approximately
$86,400,000 of Revolving Loans, (c) repurchase a privately held
block of approximately 714,600 of the Borrower's Class A common
shares for an aggregate purchase price of approximately
$12,900,000 and (d) paying costs and expenses of approximately
$3,900,000 in connection with the issuance of the Subordinated
Debentures.
4. PREREQUISITES TO LOANS. The obligation of any Bank
to make any Loan after the effective date of this Agreement shall
be conditioned upon the receipt by each Bank at or before the
time such Loan is to be made of the following, in form and
substance satisfactory to each Lending Entity:
a. If such Loan is the first Revolving Loan after the
effective date of this Agreement, a certificate executed by a
Designated Officer and a Designated Financial Officer updating
each representation and warranty previously made in or pursuant
to the Loan Agreement and stating that (i) there did not occur or
exist at any time during the period beginning on the date of the
Loan Agreement and ending at the time such Loan is to be made and
there does not exist at the time such Loan is to be made any
Event of Default or Default and (ii) each representation and
warranty made in the Loan Agreement, as amended by this
Agreement, was true and correct as of all times during the period
beginning on the date of the Loan Agreement and ending at the
time such Loan is to be made and is true and correct as of the
time such Loan is to be made, except to the extent updated in a
certificate executed by a Designated Officer and a Designated
Financial Officer and received by each Lending Entity before the
time such Loan is to be made; and
b. Payment of all costs and expenses payable pursuant
to the first sentence of Section 9(a) of the Loan Agreement at or
before the time such Loan is to be made.
5. GENERAL.
a. Term. This Agreement shall become effective upon
its execution by the Borrower, the Agent and the Required Banks.
If, however, the Subordinated Debentures are not issued on or
before June 30, 1996, this Agreement shall immediately terminate,
and the Loan Agreement shall continue in full force and effect as
if this Agreement had never been executed, except that (i) the
Borrower shall by no later than December 31, 1996 repay in
advance (other than by directly or indirectly using the proceeds
of any other Revolving Loans) all Revolving Loans the proceeds of
which were used to retire any portion of certain Permitted
<PAGE>
Indebtedness consisting of the Borrower's convertible
subordinated debentures and (ii) the obligation of the Borrower
pursuant to clause (i) of this sentence shall survive any
termination of this Agreement. Otherwise, the term of this
Agreement shall be the same as the term of the Loan Agreement, as
amended by this Agreement.
b. Survival; Reliance. Each representation, warranty,
covenant and agreement contained in this Agreement shall survive
the making of each Loan and the execution and delivery of each
Loan Document and shall continue in full force and effect during
the term of this Agreement, except to the extent modified in
accordance with the terms of this Agreement. Each such
representation, warranty, covenant and agreement shall be
presumed to have been relied upon by each Lending Entity.
c. Entire Agreement. This Agreement contains the
entire agreement between each Lending Entity and the Borrower
with respect to the subject matter of this Agreement, and
supersedes each course of dealing or other conduct heretofore
pursued, accepted or acquiesced in, and each oral or written
agreement and representation heretofore made, by or on behalf of
any Lending Entity with respect thereto, whether or not relied or
acted upon. No course of performance or other conduct hereafter
pursued, accepted or acquiesced in, and no oral agreement or
representation hereafter made, by or on behalf of any Lending
Entity, whether or not relied or acted upon, and no usage of
trade, whether or not relied or acted upon, shall modify or
terminate this Agreement or impair or otherwise affect any
indebtedness, liability or obligation of the Borrower pursuant to
this Agreement or any right or remedy of any Lending Entity
pursuant to this Agreement or otherwise. No modification or
termination of this Agreement shall be effective unless made in a
writing duly executed by the Required Banks and specifically
referring to each provision of this Agreement being modified or
to such termination.
d. Governing Law. This Agreement shall be governed by
and construed, interpreted and enforced in accordance with the
internal law of the State of New York, without regard to
principles of conflict of laws.
e. Invalidity. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable Law. If, however, any such
provision shall be prohibited by or invalid under such Law, it
shall be deemed modified to conform to the minimum requirements
of such Law, or, if for any reason it is not deemed so modified,
it shall be prohibited or invalid only to the extent of such
prohibition or invalidity without the remainder thereof of any
other such provision being prohibited or invalid.
f. Headings. In this Agreement, headings of sections
are for convenience of reference only, and are not of substantive
effect.
<PAGE>
g. Counterparts. This Agreement may be executed in
any number of counterparts and signature pages, but all of such
counterparts shall together constitute a single agreement.
h. Loan Agreement. As specifically amended by this
Agreement, the Loan Agreement shall remain in full force and
effect. Effective on the effective date of this Agreement,
references in the Loan Agreement to this Agreement shall be
deemed to be references to the Loan Agreement as amended by this
Agreement.
IN WITNESS WHEREOF, each Lending Entity and the Borrower
have caused this Agreement to be duly executed on the date shown
at the beginning of this Agreement.
MARINE MIDLAND BANK
By
Hugh C. McLean, Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By
(Title)
FLEET BANK
By
(Title)
THE MITSUBISHI BANK, LIMITED
By
(Title)
THE SUMITOMO BANK, LIMITED (as successor
to The Daiwa Bank, Limited)
By
(Title)
By
(Title)
<PAGE>
ACKNOWLEDGEMENTS
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the ____ day of March in the year 1996, before me
personally came Hugh C. McLean, known to me, who, being by me
duly sworn, did depose and say that he resides at 170 Highland
Avenue, Buffalo, New York; that he is a Vice President of Marine
Midland Bank, the corporation described in and which executed the
above instrument; and that he signed his name thereto by order of
the board of directors of said corporation.
Notary Public
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of Manufacturers and Traders
Trust Company, the corporation described in and which executed
the above instrument; and that _he signed his (her) name thereto
by order of the board of directors of said corporation.
Notary Public
<PAGE>
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of Fleet Bank, the corporation
described in and which executed the above instrument; and that
_he signed his (her) name thereto by order of the board of
directors of said corporation.
Notary Public
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of The Mitsubishi Bank, the
corporation described in and which executed the above instrument;
and that _he signed his (her) name thereto by order of the board
of directors of said corporation.
Notary Public
<PAGE>
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of The Sumitomo Bank, Limited
(as successor to The Daiwa Bank, Limited), the corporation
described in and which executed the above instrument; and that
_he signed his (her) name thereto by order of the board of
directors of said corporation.
Notary Public
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of The Sumitomo Bank, Limited
(as successor to The Daiwa Bank, Limited, the corporation
described in and which executed the above instrument; and that
_he signed his (her) name thereto by order of the board of
directors of said corporation.
Notary Public
<PAGE>
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of Barnett Bank of Pinellas
County, the corporation described in and which executed the above
instrument; and that _he signed his (her) name thereto by order
of the board of directors of said corporation.
Notary Public
<PAGE>
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of National Bank of Canada,
the corporation described in and which executed the above
instrument; and that _he signed his (her) name thereto by order
of the board of directors of said corporation.
Notary Public
<PAGE>
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the day of March in the year 1996, before me
personally came , to me
known, who, being by me duly sworn, did depose and say that _he
resides at
;
that _he is the of National Bank of Canada,
the corporation described in and which executed the above
instrument; and that _he signed his (her) name thereto by order
of the board of directors of said corporation.
Notary Public
STATE OF NEW YORK )
: SS.
COUNTY OF ERIE )
On the ____ day of March in the year 1996, before me
personally came Hugh C. McLean, known to me, who, being by me
duly sworn, did depose and say that he resides at 170 Highland
Avenue, Buffalo, New York; that he is a Vice President of Marine
Midland Bank, the corporation described in and which executed the
above instrument; and that he signed his name thereto by order of
the board of directors of said corporation.
Notary Public
<PAGE>
EXHIBIT A
Banks that are a Party to
this Agreement
Marine Midland Bank
Manufacturers and Traders Trust Company
Fleet Bank
Sumitomo Bank, Limited
The Mitsubishi Bank, Limited
Barnett Bank of Pinellas County
National Bank of Canada
<PAGE>
