<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 12, 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report: May 26, 1994
SPX Corporation
(Exact name of registrant as specified in charter)
DELAWARE 1-6948 38-1016240
(State or other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification
Incorporation) Number)
700 Terrace Point Drive
Muskegon, Michigan 49443-3301
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (616) 724-5000
<PAGE> 2
Item 7. Financial Statements and Exhibits
(c) Exhibits
(4) Form of Indenture dated as of May ____, 1994 between SPX
Corporation and The Bank of New York, as trustee.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
SPX CORPORATION
(registrant)
Date: May 25, 1994 BY: /s/ James M. Sheridan
--------------------------
James M. Sheridan
Vice President-Administration
and Secretary
<PAGE> 4
EXHIBIT 4
SPX CORPORATION,
Issuer
To
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of May , 1994
$260,000,000
% Senior Subordinated Notes due 2002
<PAGE> 5
SPX CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of , 1994
Trust Indenture Indenture
Act Section Section
- - --------------- ---------
Section 310(a)(1) . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . 608
Section 312(c) . . . . . . . . . . . . . . . 701
Section 314(a) . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . 1008
(c)(1) . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . 102
Section 315(b) . . . . . . . . . . . . . . . 601
Section 316(a)(last
sentence) . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . 104(d)
Section 317(a)(1) . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . 108
- - -----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 6
TABLE OF CONTENTS1
PAGE
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . 2
Acquired Indebtedness . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . 3
Applicable Premium . . . . . . . . . . 3
Asset Acquisition . . . . . . . . . . . 3
Asset Sale . . . . . . . . . . . . . . 3
Asset Sale Offer . . . . . . . . . . . 4
Average Life to Stated Maturity . . . . 4
Bank Credit Agreement . . . . . . . . . 4
Banks . . . . . . . . . . . . . . . . . 4
Board of Directors . . . . . . . . . . 5
Board Resolution . . . . . . . . . . . 5
Business Day . . . . . . . . . . . . . 5
Capital Stock . . . . . . . . . . . . . 5
Capitalized Lease Obligation . . . . . 5
Cash Equivalents . . . . . . . . . . . 5
Change of Control . . . . . . . . . . . 6
Change of Control Offer . . . . . . . . 7
Change of Control Purchase Date . . . . 7
Change of Control Purchase Price . . . 7
Commission . . . . . . . . . . . . . . 7
Common Stock . . . . . . . . . . . . . 7
Company . . . . . . . . . . . . . . . . 7
Company Request or Company Order . . . 7
Consolidated EBITDA . . . . . . . . . . 8
Consolidated Fixed Charge
Coverage Ratio . . . . . . . . . . . 8
Consolidated Fixed Charges . . . . . . 10
Consolidated Income Tax
Expense . . . . . . . . . . . . . . . 10
Consolidated Interest Expense . . . . . 10
- - -----------------
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of this Indenture.
i
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PAGE
----
Consolidated Net Income . . . . . . . 11
Consolidated Net Worth . . . . . . . 11
Consolidated Non-cash Charges . . . . 12
Corporate Trust Office . . . . . . . 12
corporation . . . . . . . . . . . . . 12
covenant defeasance . . . . . . . . . 12
Default . . . . . . . . . . . . . . . 12
Defaulted Interest . . . . . . . . . 12
defeasance . . . . . . . . . . . . . 12
Designated Senior
Indebtedness . . . . . . . . . . . 12
Employee Liabilities . . . . . . . . 13
Event of Default . . . . . . . . . . 13
Excess Proceeds . . . . . . . . . . . 13
Exchange Act . . . . . . . . . . . . 13
Existing Receivables Financing . . . 13
Federal Bankruptcy Code . . . . . . . 13
GAAP . . . . . . . . . . . . . . . . 13
Guarantee . . . . . . . . . . . . . . 13
guarantee . . . . . . . . . . . . . . 13
Guarantor . . . . . . . . . . . . . . 14
Guarantor Senior Indebtedness . . . . 14
Guarantor Senior Subordinated Note
Obligations . . . . . . . . . . . . 15
Holder . . . . . . . . . . . . . . . 15
Incremental Receivables Financing . . 15
Indebtedness . . . . . . . . . . . . 15
Indenture . . . . . . . . . . . . . . 17
Interest Payment Date . . . . . . . . 17
Interest Rate Protection
Obligations . . . . . . . . . . . . 17
Investment . . . . . . . . . . . . . 17
Issue Date . . . . . . . . . . . . . 18
Lien . . . . . . . . . . . . . . . . 18
Maturity . . . . . . . . . . . . . . 18
Moody's . . . . . . . . . . . . . . . 18
Net Cash Proceeds . . . . . . . . . . 18
Non-payment Default . . . . . . . . . 19
Officers' Certificate . . . . . . . . 19
Opinion of Counsel . . . . . . . . . 20
Outstanding . . . . . . . . . . . . . 20
Paying Agent . . . . . . . . . . . . 21
Payment Blockage Period . . . . . . . 21
Payment Default . . . . . . . . . . . 21
ii
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PAGE
----
Pari Passu Indebtedness . . . . . . 21
Pari Passu Offer . . . . . . . . . 21
Permitted Indebtedness . . . . . . 21
Permitted Investment . . . . . . . 26
person . . . . . . . . . . . . . . 27
Predecessor Security . . . . . . . 27
Preferred Stock . . . . . . . . . . 27
Public Equity Offering . . . . . . 27
Redeemable Capital Stock . . . . . 27
Redemption Date . . . . . . . . . . 28
Redemption Price . . . . . . . . . 28
Registration Statement . . . . . . 28
Regular Record Date . . . . . . . . 28
Responsible Officer . . . . . . . . 28
Restricted Payment . . . . . . . . 29
Restricted Subsidiary . . . . . . . 29
SPT . . . . . . . . . . . . . . . . 29
SPX Credit Lease Financings . . . . 29
S&P . . . . . . . . . . . . . . . . 29
Securities Act . . . . . . . . . . 29
Security and Securities . . . . . . 29
Security Register and Security
Registrar. . . . . . . . . . . . . . 29
Senior Indebtedness . . . . . . . . 29
Significant Subsidiary . . . . . . 30
Special Record Date . . . . . . . . 31
Stated Maturity . . . . . . . . . . 31
Subordinated Indebtedness . . . . . 31
Subsidiary . . . . . . . . . . . . 31
Surviving Entity . . . . . . . . . 31
Treasury Rate . . . . . . . . . . . 32
Trust Indenture Act or TIA . . . . 32
Trustee . . . . . . . . . . . . . . 32
Unrestricted Subsidiary . . . . . . 32
Voting Stock . . . . . . . . . . . 33
Wholly Owned Restricted
Subsidiary . . . . . . . . . . . 33
SECTION 102. Compliance Certificates and
Opinions . . . . . . . . . . . . 34
SECTION 103. Form of Documents Delivered
to Trustee . . . . . . . . . . . 35
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . 35
SECTION 105. Notices, etc., to Trustee and
Company . . . . . . . . . . . . . 37
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . 38
iii
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PAGE
----
SECTION 107. Effect of Headings and Table of
Contents . . . . . . . . . . . . 38
SECTION 108. Conflict of Any Provision of
Indenture with Trust Indenture
Act . . . . . . . . . . . . . . 38
SECTION 109. Successors and Assigns . . . . . . . . . . . 39
SECTION 110. Separability Clause . . . . . . . . . . . . . 39
SECTION 111. Benefits of Indenture . . . . . . . . . . . . 39
SECTION 112. Governing Law . . . . . . . . . . . . . . . . 39
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . 39
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . 40
SECTION 202. Form of Face of Security . . . . . . . . . . 40
SECTION 203. Form of Reverse of Security . . . . . . . . . 42
SECTION 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . 47
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms . . . . . . . . . . . . . . . 47
SECTION 302. Denominations . . . . . . . . . . . . . . . . 48
SECTION 303. Execution, Authentication,
Delivery and Dating . . . . . . . 48
SECTION 304. Temporary Securities . . . . . . . . . . . . 50
SECTION 305. Registration, Registration of
Transfer and Exchange . . . . . 51
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . 52
Section 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . 53
Section 308. Persons Deemed Owners . . . . . . . . . . . . 55
Section 309. Cancellation . . . . . . . . . . . . . . . . 55
Section 310. Computation of Interest . . . . . . . . . . . 56
Section 311. CUSIP Numbers . . . . . . . . . . . . . . . . 56
iv
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
PAGE
----
SECTION 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . 56
SECTION 402. Application of Trust Money . . . . . . . . . 58
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . 58
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . 62
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . . 63
SECTION 504. Trustee May File Proofs of Claim . . . . . . . 64
SECTION 505. Trustee May Enforce Claims
without Possession of
Securities . . . . . . . . . . . . . 65
SECTION 506. Application of Money Collected . . . . . . . . 66
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 66
SECTION 508. Unconditional Right of Holders
to Receive Principal, Premium
and Interest . . . . . . . . . . . . 67
SECTION 509. Restoration of Rights and
Remedies . . . . . . . . . . . . . 67
SECTION 510. Rights and Remedies Cumulative . . . . . . . . 68
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . 68
SECTION 512. Control by Holders . . . . . . . . . . . . . . 68
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . 69
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . 69
SECTION 515. Waiver of Stay, Extension or
Usury Laws . . . . . . . . . . . . 70
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . 70
v
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PAGE
----
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . 71
SECTION 603. Trustee Not Responsible for
Recitals or Issuance of
Securities . . . . . . . . . . . . . 72
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . 73
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . 73
SECTION 606. Compensation and Reimbursement . . . . . . . . . 73
SECTION 607. Conflicting Interests . . . . . . . . . . . . . . 74
SECTION 608. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . 74
SECTION 609. Resignation and Removal;
Appointment of Successor . . . . . . 75
SECTION 610. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . 77
SECTION 611. Merger, Conversion, Consolidation
or Succession to Business . . . . . 77
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses
of Holders . . . . . . . . . . . . . . . 78
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . 78
SECTION 703. Reports by Company . . . . . . . . . . . . . . . 78
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc.,
Only on Certain Terms . . . . . . . . 79
SECTION 802. Successor Substituted . . . . . . . . . . . . . 82
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without
Consent of Holders . . . . . . . . 83
vi
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PAGE
----
SECTION 902. Supplemental Indentures with
Consent of Holders . . . . . . . . 84
SECTION 903. Execution of Supplemental
Indentures . . . . . . . . . . . . 85
SECTION 904. Effect of Supplemental
Indentures . . . . . . . . . . . . . 86
SECTION 905. Conformity with Trust Indenture
Act . . . . . . . . . . . . . . . . 86
SECTION 906. Reference in Securities to
Supplemental Indentures . . . . . . 86
SECTION 907. Notice of Supplemental
Indentures . . . . . . . . . . . . . 86
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium,
If Any, and Interest . . . . . . . 87
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 87
SECTION 1003. Money for Security Payments
to Be Held in Trust . . . . . . . . 88
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . 90
SECTION 1005. Payment of Taxes and Other Claims . . . . . . . 90
SECTION 1006. Maintenance of Properties . . . . . . . . . . . 90
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . 91
SECTION 1008. Compliance Certificate . . . . . . . . . . . . 91
SECTION 1009. Notice of Default . . . . . . . . . . . . . . . 91
SECTION 1010. Limitation on Indebtedness . . . . . . . . . . 92
SECTION 1011. Limitation on Restricted
Payments . . . . . . . . . . . . . 92
SECTION 1012. Limitation on Liens. . . . . . . . . . . . . . 96
SECTION 1013. Purchase of Securities upon
Change of Control . . . . . . . . . 96
SECTION 1014. Disposition of Proceeds of Asset
Sales . . . . . . . . . . . . . . . 100
SECTION 1015. Limitation on Issuance and
Sale of Capital Stock by
Restricted Subsidiaries . . . . . . 105
SECTION 1016. Limitation on Transactions with
Affiliates . . . . . . . . . . . . . 106
vii
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PAGE
----
SECTION 1017. Limitation on Dividend and
Other Payment Restrictions
Affecting Restricted
Subsidiaries . . . . . . . . . . . 107
SECTION 1018. Limitation on Guarantees by
Restricted Subsidiaries . . . . . 107
SECTION 1019. Restriction on Transfer of Assets . . . . . . . 109
SECTION 1020. Limitation on Certain Other
Subordinated Indebtedness . . . . 109
SECTION 1021. Waiver of Certain Covenants . . . . . . . . . . 110
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption . . . . . . . . . . . . . . . 110
SECTION 1102. Applicability of Article . . . . . . . . . . . . 111
SECTION 1103. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . . . 111
SECTION 1104. Selection by Trustee of
Securities to Be Redeemed . . . . . . 111
SECTION 1105. Notice of Redemption . . . . . . . . . . . . . . 112
SECTION 1106. Deposit of Redemption Price . . . . . . . . . . . 113
SECTION 1107. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . 113
SECTION 1108. Securities Redeemed in Part . . . . . . . . . . . 113
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect
Defeasance or Covenant Defeasance . . 114
SECTION 1202. Defeasance and Discharge . . . . . . . . . . . . 114
SECTION 1203. Covenant Defeasance . . . . . . . . . . . . . . . 115
SECTION 1204. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . 116
SECTION 1205. Deposited Money and U.S.
Government Obligations to Be
Held in Trust; Other Miscellaneous
Provisions . . . . . . . . . . . . . 119
SECTION 1206. Reinstatement . . . . . . . . . . . . . . . . . . 120
viii
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ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
PAGE
----
SECTION 1301. Securities Subordinate to
Senior Indebtedness . . . . . . . . . 121
SECTION 1302. Payment Over of Proceeds upon
Dissolution, etc. . . . . . . . . . . 121
SECTION 1303. Suspension of Payment When Senior
Indebtedness in Default . . . . . . . 123
SECTION 1304. Payment Permitted If No Default . . . . . . . . . 125
SECTION 1305. Subrogation to Rights of Holders of
Senior Indebtedness . . . . . . . . . 126
SECTION 1306. Provisions Solely to Define
Relative Rights . . . . . . . . . . . 126
SECTION 1307. Trustee to Effectuate
Subordination . . . . . . . . . . . . 127
SECTION 1308. No Waiver of Subordination
Provisions . . . . . . . . . . . . . . 127
SECTION 1309. Notice to Trustee . . . . . . . . . . . . . . . . 128
SECTION 1310. Reliance on Judicial Order or
Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . 129
SECTION 1311. Rights of Trustee as a Holder of
Senior Indebtedness;
Preservation of Trustee's Rights . . . 129
SECTION 1312. Article Applicable to Paying
Agents . . . . . . . . . . . . . . . . 130
SECTION 1313. No Suspension of Remedies . . . . . . . . . . . . 130
SECTION 1314. Trust Moneys Not Subordinated . . . . . . . . . . 130
SECTION 1315. Proof of Claim . . . . . . . . . . . . . . . . . 130
SECTION 1316. Trustee Not Fiduciary for Holders
of Senior Indebtedness . . . . . . . . 131
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . 132
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . 132
EXHIBIT A (Article Fourteen) . . . . . . . . . . . . . . . . . A-1
ix
<PAGE> 15
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
PAGE
----
SECTION 1401. Guarantee . . . . . . . . . . . . . . . . . . . . A-1
SECTION 1402. Execution and Delivery of Guarantee . . . . . . . A-3
SECTION 1403. Additional Guarantors . . . . . . . . . . . . . . A-3
SECTION 1404. Guarantee Obligations
Subordinated to Guarantor
Senior Indebtedness . . . . . . . . . A-4
SECTION 1405. Payment Over of Proceeds upon
Dissolution, etc., of a Guarantor . . A-5
SECTION 1406. Suspension of Guarantee Obligations
When Senior Indebtedness in
Default . . . . . . . . . . . . . . . A-6
SECTION 1407. Release of a Guarantor . . . . . . . . . . . . . A-8
SECTION 1408. Waiver of Subrogation . . . . . . . . . . . . . . A-9
SECTION 1409. Subrogation to Rights of Holders of
Guarantor Senior Indebtedness . . . . A-10
SECTION 1410. Guarantor Provisions Solely to
Define Relative Rights . . . . . . . A-10
SECTION 1411. Trustee to Effectuate
Subordination of Guarantee
Obligations . . . . . . . . . . . . . A-11
SECTION 1412. No Waiver of Guarantee
Subordination Provisions . . . . . . A-11
SECTION 1413. Guarantors to Give Notice to
Trustee . . . . . . . . . . . . . . . A-12
SECTION 1414. Reliance on Judicial Order or
Certificate of Liquidating Agent
Regarding Dissolution, etc., of
Guarantors . . . . . . . . . . . . . A-13
SECTION 1415. Rights of Trustee as a Holder of
Guarantor Senior Indebtedness;
Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . A-14
SECTION 1416. Article Applicable to Paying
Agents . . . . . . . . . . . . . . . A-14
SECTION 1417. No Suspension of Remedies . . . . . . . . . . . . A-15
SECTION 1418. Proof of Claim . . . . . . . . . . . . . . . . . A-15
SECTION 1419. Trustee Not Fiduciary for Holders
of Guarantor Senior Indebtedness . . . A-15
EXHIBIT B (Senior Subordinated Guarantee) . . . . . . . B-1
x
<PAGE> 16
INDENTURE, dated as of May , 1994, between SPX
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
700 Terrace Point Drive, Muskegon, Michigan 49443, and The Bank of New York, a
New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
% Senior Subordinated Notes due 2002 (herein called the "Securities"), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All acts and things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid, binding and legal
obligations of the Company, and to make this Indenture a valid agreement of the
Company, in accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
<PAGE> 17
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article
have the meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all other terms used herein which
are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States on the Issue Date; and
(d) the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Ten, are defined in
that Article.
"Acquired Indebtedness" means Indebtedness of a person (a)
assumed in connection with an Asset Acquisition from such person or (b)
existing at the time such person becomes a Restricted Subsidiary of any other
person, other than Indebtedness incurred in connection with, or in
contemplation of, such person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
2
<PAGE> 18
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person. For purposes of
this definition, "control" when used with respect to any person means the power
to direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Applicable Premium" means, with respect to a Security, the
greater of (i) 1.0% of the then outstanding principal amount of such Security
and (ii) the excess of (A) the present value of the required interest and
principal payments due on such Security, computed using a discount rate equal
to the Treasury Rate plus basis points, over (B) the then outstanding
principal amount of such Security; provided, however, that in no event will the
Applicable Premium exceed the amount of the applicable redemption price upon an
optional redemption less 100%, at any time on or after , 1998.
"Asset Acquisition" means (a) an Investment by the Company or
any Subsidiary of the Company in any other person pursuant to which such person
shall become a Restricted Subsidiary of the Company, or shall be merged with or
into the Company or any Restricted Subsidiary of the Company, or (b) the
acquisition by the Company or any Restricted Subsidiary of the Company of the
assets of any person which constitute all or substantially all of the assets of
such person or any division or line of business of such person.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger or
consolidation) to any person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company (which is subject to Section 1019), in one
or a series of related transactions, of: (a) any Capital Stock of any
Restricted Subsidiary of the Company, (b) all or substantially all of the
properties and assets of any division or line of business of the Company or any
Restricted Subsidiary of the Company or (c) any other properties or assets of
the Company or a Restricted Subsidiary (including proprietary brand names,
whether registered or otherwise) other than
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<PAGE> 19
in the ordinary course of business. For the purposes of this definition, the
term "Asset Sale" shall not include (i) any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets that is governed
by the provisions of Article Eight, (ii) sales of assets consisting of obsolete
equipment or assets that in the Company's reasonable judgment are either (x) no
longer used or (y) no longer useful in the business of the Company or its
Restricted Subsidiaries, (iii) any sale, issuance, conveyance, transfer, lease
or other disposition of properties or assets, whether in one transaction or a
series of related transactions, involving assets with a fair market value
determined by the Company to be not in excess of $500,000, or (iv) any sales or
financings of accounts or lease receivables pursuant to clause (12), (13) or
(14) of the definition of "Permitted Indebtedness."
"Asset Sale Offer" has the meaning set forth in Section 1014.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by
dividing (a) the sum of the products of (i) the number of years from such date
to the date or dates of each successive scheduled principal payment (including,
without limitation, any sinking fund requirements) of such Indebtedness
multiplied by (ii) the amount of each such principal payment by (b) the sum of
all such principal payments.
"Bank Credit Agreement" means (a) the Credit Agreement dated
as of March 24, 1994 among the Company, the Banks and The First National Bank
of Chicago, as agent for the Banks, as in effect on the Issue Date and as such
agreement may be amended, restated, supplemented or otherwise modified from
time to time, and (b) any credit agreement, loan agreement, note purchase
agreement, indenture or other agreement, document or instrument refinancing,
refunding or otherwise replacing such Agreement or any other agreement deemed a
Bank Credit Agreement under clause (a) or (b) hereof.
"Banks" means the lenders from time to time who are parties to
the Bank Credit Agreement.
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<PAGE> 20
"Board of Directors" of any person means the board of
directors of such person or any duly authorized committee of such board.
"Board Resolution" of any person means a copy of a resolution
certified by the Secretary or an Assistant Secretary of such person to have
been duly adopted by the Board of Directors of such person and to be in full
force and effect on the date of such certification and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law, regulation or executive order to
close.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations, rights in or other equivalents or interests
in (however designated) such person's capital stock or other equity interests
or participation, including general and limited partnership interests, and any
rights (other than debt securities convertible into capital stock), warrants or
options exchangeable for or convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying the right
to use) any property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under GAAP; and, for
the purpose of the Indenture, the amount of such obligation at any date shall
be the capitalized amount thereof on the balance sheet at such date, determined
in accordance with GAAP consistently applied.
"Cash Equivalents" means, at any time: (i) any evidence of
Indebtedness with a maturity of 180 days or less issued, or directly and fully
guaranteed or insured, by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit,
time deposits and bankers' acceptances with a maturity of 180 days or less of
any financial institution that is a
5
<PAGE> 21
member of the Federal Reserve System having combined capital and surplus and
undivided profits of not less than $500,000,000; (iii) commercial paper with a
maturity of 90 days or less issued by a corporation that is not an Affiliate of
the Company or a Subsidiary of the Company organized under the laws of any
state of the United States or the District of Columbia and rated at least A-1
by S&P or at least P-1 by Moody's or at least an equivalent rating category of
another nationally recognized securities rating agency; and (iv) any money
market or other deposit accounts issued or offered by any domestic institution
in the business of accepting money market accounts or any commercial banking
institution described in clause (ii) above.
"Change of Control" means an event as a result of which: (a)
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the
total outstanding Voting Stock of the Company; (b) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election to such Board or whose nomination for election by the shareholders of
the Company was approved by a vote of 66-2/3% of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of such Board of Directors then in office; (c)
the Company consolidates with, or merges with or into, any person or conveys,
transfers or leases all or substantially all of its assets to any person, or
any corporation consolidates with or merges into or with the Company in any
such event pursuant to a transaction in which the outstanding Voting Stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where the outstanding Voting Stock of
the Company is not changed or exchanged at all (except to the extent necessary
to reflect a change in the jurisdiction of incorporation of the Company) or
where (i) the outstanding Voting Stock of the Company is changed into or
exchanged for (1) Voting Stock of the surviving corporation which is not
Redeemable Capital Stock or (2) cash, securities and other property (other than
Capital Stock
6
<PAGE> 22
of the surviving corporation) in an amount which could be paid by the Company
as a Restricted Payment under this Indenture (and such amount shall be treated
as a Restricted Payment subject to Section 1011) and (ii) no "person" or
"group" owns immediately after such transaction, directly or indirectly, more
than 50% of the total outstanding Voting Stock of the surviving corporation; or
(d) the Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution other than in a transaction which complies with the provisions of
Article Eight.
"Change of Control Offer" has the meaning set forth in Section
1013.
"Change of Control Purchase Date" has the meaning set forth in
Section 1013.
"Change of Control Purchase Price" has the meaning set forth
in Section 1013.
"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 Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means, with respect to any person, any and all
shares, interests or other participation in, and other equivalents (however
designated and whether voting or nonvoting) of, such person's common stock,
whether outstanding at the Issue Date or issued after the Issue Date, and
includes, without limitation, all series and classes of such common stock.
"Company" means the person named as the "Company" in the first
paragraph of this Indenture, until a successor person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company (i) by its Chairman, its President
or any Vice President and (ii) by its Treasurer, an Assistant Treasurer,
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<PAGE> 23
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 officers and directors listed in clause (i) above in lieu of being
signed by one of such officers and directors listed in such clause (i) and one
of the officers listed in clause (ii) above.
"Consolidated EBITDA" means, with respect to any person for
any period, (i) the sum of, without duplication, the amount for such period,
taken as a single accounting period, of (a) Consolidated Net Income, (b)
Consolidated Non-cash Charges, (c) Consolidated Interest Expense, (d)
Consolidated Income Tax Expense and (e) any increase in the Employee
Liabilities of such person and its Restricted Subsidiaries for such period less
any decrease in the Employee Liabilities of such period, which have been
deducted to arrive at Consolidated Net Income less (ii) non-cash items
increasing Consolidated Net Income (other than in the ordinary course of
business); provided, however, that if, during such period, such person or any
of its Restricted Subsidiaries shall have consummated any Asset Sale or Asset
Acquisition, Consolidated EBITDA for such person and its Restricted
Subsidiaries for such period shall be adjusted (in the manner set forth in the
definition of the term "Consolidated Fixed Charge Coverage Ratio") to give pro
forma effect to the Consolidated EBITDA directly attributable to the assets
which are the subject of such Asset Sales or Asset Acquisitions during such
period.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any person, the ratio of the aggregate amount of Consolidated EBITDA of such
person for the four full fiscal quarters for which financial information in
respect thereof is available immediately preceding the date of the transaction
(the "Transaction Date") giving rise to the need to calculate the Consolidated
Fixed Charge Coverage Ratio (such four full fiscal quarter period being
referred to herein as the "Four Quarter Period") to the aggregate amount of
Consolidated Fixed Charges of such person for the Four Quarter Period. In
addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to, without duplication, (a) the
8
<PAGE> 24
incurrence of any Indebtedness of such person or any of its Restricted
Subsidiaries during the period commencing on the first day of the Four Quarter
Period to and including the Transaction Date (the "Reference Period"),
including, without limitation, the incurrence of the Indebtedness giving rise
to the need to make such calculation, as if such incurrence occurred on the
first day of the Reference Period, and (b) any Asset Sales or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of such person or one of its
Restricted Subsidiaries (including any person who becomes a Subsidiary as a
result of the Asset Acquisi- tion) incurring, assuming or otherwise being
liable for Acquired Indebtedness) occurring during the Reference Period, as if
such Asset Sale or Asset Acquisition occurred on the first day of the Reference
Period. Furthermore, in calculating "Consolidated Fixed Charges" for purposes
of determining the denominator (but not the numerator) of this "Consolidated
Fixed Charge Coverage Ratio," (i) interest on outstanding Indebtedness
determined on a fluctuating basis as of the Transaction Date and which will
continue to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date, (ii) if interest on any Indebtedness actually
incurred on the Transaction Date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Reference
Period and (iii) notwithstanding clauses (i) and (ii) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Rate Protection Obligations, shall
be deemed to have accrued at the rate per annum resulting after giving effect
to the operation of such agreements. In calculating the Consolidated Fixed
Charge Coverage Ratio, and giving pro forma effect to any incurrence of
Indebtedness during a Reference Period, pro forma effect shall be given to the
use of proceeds thereof to permanently repay or retire Indebtedness. If such
person or any of its Restricted Subsidiaries directly or indirectly guaranteed
Indebtedness of a third person, the above clauses shall give effect to the
incurrence of such guaranteed Indebtedness as if such person or such Restricted
Subsidiary
9
<PAGE> 25
had directly incurred or otherwise assumed such guaranteed Indebtedness.
"Consolidated Fixed Charges" means, with respect to any person
for any period, the sum of, without duplication, the amounts for such period of
(i) Consolidated Interest Expense and (ii) the aggregate amount of dividends
and other distributions (A) paid or accrued during such period in respect of
Redeemable Capital Stock and (B) paid during such period in respect of
Preferred Stock (other than Preferred Stock which is Redeemable Capital Stock)
of such person and its Restricted Subsidiaries on a consolidated basis;
provided, however, that if, during such period, such person or any of its
Restricted Subsidiaries shall have made any Asset Sales or Asset Acquisitions,
Consolidated Fixed Charges for such person and its Restricted Subsidiaries for
such period shall be adjusted (in the manner set forth in the definition of the
term "Consolidated Fixed Charge Coverage Ratio") to give pro forma effect to
the Consolidated Fixed Charges directly attributable to the assets which are
the subject of such Asset Sales or Asset Acquisitions during such period.
"Consolidated Income Tax Expense" means, with respect to any
person for any period, the provision for federal, state, local and foreign
income taxes of such person and its Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP consistently
applied.
"Consolidated Interest Expense" means, with respect to any
person for any period, without duplication, the sum of (i) the interest expense
of such person and its Restricted Subsidiaries for Indebtedness for such period
as determined on a consolidated basis in accordance with GAAP consistently
applied, including, without limitation, (a) any amortization of debt discount,
(b) the net cost under Interest Rate Protection Obligations (including any
amortization of discounts), (c) the interest portion of any deferred payment
obligation which in accordance with GAAP is required to be reflected on an
income statement, (d) all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing, (e)
all accrued interest and (f) that portion of rental expense estimated to be
representative of the interest factor and (ii) the
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<PAGE> 26
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such person and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP consistently applied.
"Consolidated Net Income" means, with respect to any person,
for any period, the consolidated net income (or loss) of such person and its
Restricted Subsidiaries for such period as determined in accordance with GAAP
consistently applied adjusted, to the extent included in calculating such net
income, by excluding, without duplication, (i) all extraordinary gains or
losses (net of fees and expenses relating to the transaction giving rise
thereto) and the non-recurring cumulative effect of accounting changes, (ii)
the portion of net income (or loss) of such person and its Restricted
Subsidiaries allocable to minority interests in unconsolidated persons to the
extent that cash dividends or distributions have not actually been received by
such person or one of its Restricted Subsidiaries, (iii) net income (or loss)
of any person combined with such person or one of its Restricted Subsidiaries
on a "pooling of interests" basis attributable to any period prior to the date
of combination, (iv) gains or losses in respect of any Asset Sales by such
person or one of its Restricted Subsidiaries (net of fees and expenses relating
to the transaction giving rise thereto), on an after-tax basis, (v) the net
income of any Restricted Subsidiary of such person to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulations applicable
to that Restricted Subsidiary or its stockholders, (vi) gains or losses
realized upon the termination of any employee pension benefit plan, on an
after-tax basis and (vii) a non-recurring charge relating to the write off of
goodwill of the Company's Automotive Diagnostics division, recorded on the
Company's consolidated balance sheet in accordance with GAAP, in an aggregate
amount not to exceed $75,000,000.
"Consolidated Net Worth" means, with respect to any person at
any date, the consolidated stockholders' equity of such person less the amount,
if any, of such
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<PAGE> 27
stockholders' equity attributable to Redeemable Capital Stock or treasury stock
of such person and its Restricted Subsidiaries, as determined in accordance
with GAAP consistently applied.
"Consolidated Non-cash Charges" means, with respect to any
person for any period, the aggregate depreciation, amortization and other
non-cash expenses (including, without limitation, non-cash reserves and
non-cash charges) of such person and its Restricted Subsidiaries reducing
Consolidated Net Income of such person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP consistently
applied (but only to the extent such non-cash reserves, expenses and charges
did not require an accrual of a reserve for cash disbursements for any future
periods).
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is
located at 101 Barclay Street, Floor 21W, New York, New York 10286; Attention:
Corporate Trust Trustee Administration.
"corporation" includes corporations, associations,
partnerships, companies and business trusts.
"covenant defeasance" has the meaning set forth in Section
1203.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1202.
"Designated Senior Indebtedness" means (i) all Senior
Indebtedness under the Bank Credit Agreement and (ii) any other Senior
Indebtedness which, at the time of determination, has an aggregate principal
amount outstanding, together with any commitments to lend addition-
12
<PAGE> 28
al amounts, of at least $25,000,000 and is specifically designated by the
Company, with the consent of the agent for the Banks under the Bank Credit
Agreement, in its sole discretion, if such agreement is then in effect, in the
instrument evidencing such Senior Indebtedness or the agreement under which
such Senior Indebtedness arises as "Designated Senior Indebtedness."
"Employee Liabilities" means, with respect to any person, any
liability in respect of employee benefits that would be reflected on a
consolidated balance sheet of such person and its Restricted Subsidiaries
prepared in accordance with GAAP.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning set forth in Section 1014.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and rules and regulations thereunder.
"Existing Receivables Financing" means obligations of the
Company incurred or issued pursuant to the terms of those certain agreements,
dated as of April 30, 1991, between the Company and each of The First National
Bank of Chicago and Falcon Asset Securitization Corporation.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"GAAP" or "generally accepted accounting principles" means
generally accepted accounting principles in the United States set forth in the
Statements of Financial Accounting Standards and Interpretations, Accounting
Principles Board Opinions and AICPA Accounting Research Bulletins which are
applicable as of the Issue Date.
"Guarantee" has the meaning set forth in Section 1018.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of
13
<PAGE> 29
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner, of any part or all of such obligation and
(ii) an agreement, direct or indirect, contingent or otherwise, the practical
effect of which is to assure in any way the payment or performance (or payment
of damages in the event of non-performance) of all or any part of such
obligation including, without limiting the foregoing, the payment of amounts
drawn down by letters of credit.
"Guarantor" means the issuer at any time of a Guarantee (so
long as such Guarantee remains outstanding).
"Guarantor Senior Indebtedness" means the principal of and
premium, if any, and interest on any Indebtedness of a Guarantor, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Guarantee of such Guarantor. Without limiting the generality of the foregoing,
"Guarantor Senior Indebtedness" shall also include the principal of and
premium, if any, and interest (including interest accruing after the filing of
a petition initiating any proceeding under any state or federal bankruptcy law,
whether or not such interest is an allowable claim in such proceeding) on, and
all other amounts owing by such Guarantor in respect of, (x) the Bank Credit
Agreement or any guarantee thereof and (y) all Interest Rate Protection
Obligations incurred to satisfy the requirements of the Bank Credit Agreement
or any guarantee thereof. Notwithstanding the foregoing, "Guarantor Senior
Indebtedness" shall not include (a) Indebtedness evidenced by the Guarantee of
such Guarantor, (b) Indebtedness that is expressly subordinate or junior in
right of payment to any Guarantor Senior Indebtedness of such Guarantor, (c)
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of the Federal Bankruptcy Code, is by its terms without
recourse to such Guarantor, (d) any repurchase, redemption or other obligation
in respect of Redeemable Capital Stock of such Guarantor, (e) to the extent it
might constitute Indebtedness, amounts owing for goods, materials or services
purchased in the ordinary course of business or consisting of trade payables
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<PAGE> 30
or other current liabilities (other than any current liabilities owing under
the Bank Credit Agreement or any guarantee thereof or the current portion of
any long-term Indebtedness which would constitute Guarantor Senior Indebtedness
but for the operation of this clause (e)), (f) to the extent it might
constitute Indebtedness, amounts owed by such Guarantor for compensation to
employees or for services rendered to such Guarantor, (g) to the extent it
might constitute Indebtedness, any liability for federal, state, local or other
taxes owed or owing by such Guarantor, (h) Indebtedness of such Guarantor to a
Subsidiary of such Guarantor or any other Affiliate of such Guarantor or any of
such Affiliate's Subsidiaries and (i) that portion of any Indebtedness of such
Guarantor which at the time of issuance is issued in violation of this
Indenture.
"Guarantor Senior Subordinated Note Obligations" means, with
respect to any Guarantee, any amounts payable pursuant to the terms of such
Guarantee or Article Fourteen of this Indenture, including amounts received
upon the exercise of right of rescission or other rights of action (including
claims for damages) or otherwise, to the extent relating to the purchase price
of the Securities or amounts corresponding to such principal, premium, if any,
or interest on the Securities.
"Holder" means a person in whose name a Security is registered
in the Security Register.
"Incremental Receivables Financing" means obligations of the
Company incurred or issued pursuant to an increase in the Existing Receivables
Financing or pursuant to a separate securitized receivables facility incurred
or issued on commercially reasonable terms and conditions for similar financing
transactions and negotiated on an arm's-length basis from an unaffiliated
lender.
"Indebtedness" means, with respect to any person, without
duplication, (a) all liabilities of such person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities incurred in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such person in connection with any letters of credit,
15
<PAGE> 31
banker's acceptance or other similar credit transaction, (b) all obligations of
such person evidenced by bonds, notes, debentures or other similar instruments,
(c) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such person
(even if the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such property),
but excluding trade accounts payable arising in the ordinary course of
business, (d) all Capitalized Lease Obligations of such person, (e) all
Indebtedness referred to in the preceding clauses of other persons and all
dividends of other persons, the payment of which is secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien upon property (including, without limitation,
accounts and contract rights) owned by such person, even though such person has
not assumed or become liable for the payment of such Indebtedness (the amount
of such obligations being deemed to be the lesser of the value of such property
or asset or the amount of the obligation so secured), (f) all guarantees of
Indebtedness referred to in this definition by such person, (g) all Redeemable
Capital Stock valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued dividends, (h) all obligations under or in
respect of currency exchange contracts and Interest Rate Protection Obligations
of such person, (i) repurchase obligations or liabilities of such person with
respect to accounts or lease receivables or notes receivable sold by such
person, (j) obligations incurred under or in connection with the Existing
Receivables Financing or any Incremental Receivables Financing, notwithstanding
the manner in which such obligations are characterized on a balance sheet of
the Company prepared in accordance with GAAP, provided that, for purposes of
calculating financial tests hereunder, such obligations shall be included only
to the extent such obligations are with recourse to the Company or any of its
Restricted Subsidiaries, (k) with respect to SPX Credit Corporation,
obligations incurred under or in connection with any SPX Credit Lease
Financing, notwithstanding the manner in which such obligations are
characterized on a balance sheet of the Company and its Restricted Subsidiaries
prepared in accordance with GAAP, provided that, for purposes of calculating
financial tests hereunder, such obligations shall be excluded as Indebtedness,
and (l)
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<PAGE> 32
any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (a) through (k)
above. For purposes hereof, (x) the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock, and (y) Indebtedness
is deemed to be incurred pursuant to a revolving credit facility each time an
advance is made thereunder.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) and as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Protection Obligations" means the obligations
of any person pursuant to any arrangement with any other person whereby,
directly or indirectly, such person is entitled to receive from time to time
periodic payments calculated by applying either a floating or a fixed rate of
interest on a stated notional amount in exchange for periodic payments made by
such person calculated by applying a fixed or a floating rate of interest on
the same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
"Investment" means, with respect to any person, any direct or
indirect loan or other extension of credit, advance, guarantee or capital
contribution to (by means of any transfer of cash or other property to others
or any payment for property or services for the account or use of others), or
any purchase or acquisition by such person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any
other person. For the purpose of making any calcula-
17
<PAGE> 33
tions under this Indenture (i) Investment shall include the person's
proportionate share of the fair market value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the person's proportionate share
of the fair market value of the net assets of any Unrestricted Subsidiary that
is designated a Restricted Subsidiary and (ii) any property transferred to or
from an Unrestricted Subsidiary shall be valued at fair market value at the
time of such transfer; provided that, in each case, the fair market value of an
asset or property shall be as determined by the Board of Directors of the
Company in good faith. For purposes of this Indenture, the change in
designation of a Restricted Subsidiary to an Unrestricted Subsidiary shall be
an Investment. "Investments" shall exclude extensions of trade credit on
commercially reasonable terms consistent with the normal course of business of
the Company and the Restricted Subsidiaries.
"Issue Date" means the date on which the Securities are
originally issued under this Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or
other), security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any
property of any kind. A person shall be deemed to own subject to a Lien any
property which such person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
"Maturity," when used with respect to any Security, means the
date on which the principal of (and premium, if any) and interest on such
Security become due and payable as therein or herein provided, whether at
Stated Maturity, Change of Control Purchase Date, any payment date for an Asset
Sale Offer or Redemption Date and whether by declaration of acceleration, call
for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, with respect to any Asset Sale,
the proceeds thereof in the form of cash or
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<PAGE> 34
Cash Equivalents including payments in respect of deferred payment obligations
when received in the form of cash or Cash Equivalents (except to the extent
that such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary of the Company) net of (i) brokerage commissions and
other fees and expenses (including, without limitation, fees and expenses of
legal counsel and investment bankers) related to such Asset Sale, (ii)
provisions of all taxes payable as a result of such Asset Sale, (iii) amounts
required to be paid and which have been paid, or amounts required to be pledged
and which are pledged to repay or secure Indebtedness owed to any person (other
than the Company or any Restricted Subsidiary of the Company) owning a
beneficial interest in the assets subject to the Asset Sale (which, in the case
of a Lien, is being pledged to permanently reduce Indebtedness secured by such
Lien) and (iv) appropriate amounts to be provided by the Company or any
Restricted Subsidiary of the Company, as the case may be, as a reserve required
in accordance with GAAP consistently applied against any liabilities associated
with such Asset Sale and retained by the Company or any Restricted Subsidiary
of the Company, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an Officers'
Certificate delivered to the Trustee.
"Non-payment Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice-chairman, the President, a Vice President or the Treasurer of
the Company and (ii) the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee; provided, however, that such certificate may be
signed by two of the officers and directors listed in clause (i) above in lieu
of being signed by one of such officers and directors listed in such clause (i)
and one of the officers listed in clause (ii) above.
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<PAGE> 35
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
Each such opinion (i) shall include the statements provided for in TIA Section
314(e) to the extent applicable and (ii) may state that the counsel rendering
such opinion have relied upon an Officers' Certificate with respect to factual
matters which are set forth in such opinion.
"Outstanding," when used with respect to the Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment,
redemption or purchase money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities, and the Trustee or such Paying Agent is not
prohibited from paying such money to the Holders on that date pursuant
to the terms of Article Thirteen hereof; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1202 and 1203, with respect to which the Company has effected
defeasance as provided in Article Twelve; and
(iv) Securities paid pursuant to Section 306 and Securities
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands the Securities are valid
obligations of the Company;
20
<PAGE> 36
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
direction, consent, notice or waiver hereunder, and for the purpose of making
the calculations required by TIA Section 313, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or
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, direction, consent, notice or waiver, only
Securities which the Trustee actually knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company.
"Payment Blockage Period" has the meaning set forth in Section
1303.
"Payment Default" means any default in the payment of
principal of (or premium, if any) or interest on Designated Senior Indebtedness
beyond any applicable grace period with respect thereto.
"Pari Passu Indebtedness" means any Indebtedness of the
Company that is pari passu in right of payment to the Securities.
"Pari Passu Offer" has the meaning set forth in Section 1013.
"Permitted Indebtedness" means
(1) Indebtedness of the Company under the Bank Credit
Agreement in an aggregate principal amount at any one time
outstanding not to exceed $225,000,000;
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<PAGE> 37
(2) Indebtedness of the Company (including, without
limitation, Indebtedness under the Bank Credit Agreement in excess
of the $225,000,000 permitted in clause (1) above) that is
intended to provide working capital financing or financing for
general corporate purposes as long as the incurrence of such
Indebtedness would not result in the aggregate outstanding
Indebtedness incurred pursuant to this clause (2) being in excess
of (i) the sum of (x) 60% of the net aggregate book value of
inventory and (y) 85% of the aggregate book value of all accounts
and lease receivables (net of bad debt expense) of the Company and
its Restricted Subsidiaries on a consolidated basis, at the time
such Indebtedness is incurred, as determined in accordance with
GAAP minus (ii) $225,000,000;
(3) Indebtedness of the Company pursuant to the Securities
and Indebtedness of any Subsidiary pursuant to a Guarantee;
(4) Indebtedness of the Company outstanding on the date of
the Indenture other than Indebtedness pursuant to clauses (1),
(12), (13) and (14) hereof;
(5) Interest Rate Protection Obligations of the Company
covering Indebtedness of the Company; provided, however, that (i)
any Indebtedness to which any such Interest Rate Protection
Obligations relate bears interest at fluctuating interest rates
and is otherwise permitted to be incurred under this covenant and
(ii) the notional amount of any such Interest Rate Obligations
does not exceed the principal amount of the Indebtedness to which
such Interest Rate Obligations relates and which Indebtedness
either is outstanding at the time the Interest Rate Protection
Obligation is incurred or such Indebtedness is incurred within
90 days thereafter;
(6) Indebtedness of a Wholly Owned Restricted Subsidiary of
the Company issued to and held by (x) the Company or (y) another
Wholly Owned Restricted Subsidiary of the Company; provided,
however, that any Indebtedness of a Guarantor which is a Wholly
Owned Restricted Subsidiary owing to a Wholly Owned Restricted
Subsidiary which is not a Guarantor shall be subordinated in right
of payment from and
22
<PAGE> 38
after such time as the obligations under the Guarantee by such
Wholly Owned Restricted Subsidiary shall become due and payable
(whether at Stated Maturity, by acceleration or otherwise) to the
payment and performance of such Wholly Owned Restricted
Subsidiary's obligations under its Guarantee; and provided,
further, that (a) any disposition, pledge or transfer of any such
Indebtedness to a person (other than the Company or a Wholly Owned
Restricted Subsidiary) shall be deemed to be an incurrence of such
Indebtedness by the obligor not permitted by this clause; and (b)
any transaction pursuant to which a Wholly Owned Restricted
Subsidiary, which has Indebtedness owing to the Company or any
other Wholly Owned Restricted Subsidiary, ceases to be a Wholly
Owned Restricted Subsidiary shall be deemed to be the incurrence
of Indebtedness by such Wholly Owned Restricted Subsidiary that is
not permitted by this clause;
(7) Indebtedness of the Company issued to and held by a
Wholly Owned Restricted Subsidiary of the Company which is
unsecured and subordinated in right of payment from and after such
time as the Securities shall become due and payable (whether at a
Stated Maturity, by acceleration or otherwise) to the payment and
performance of the Company's obligations under the Indenture and
the Securities; provided, however, that any subsequent transfer of
such Indebtedness (other than to the Company or a Wholly Owned
Restricted Subsidiary) will be deemed, in each case, to constitute
the issuance of such Indebtedness by the Company that is not
permitted by this clause;
(8) Indebtedness of the Company or any Restricted Subsidiary
incurred in respect of performance bonds, surety bonds and
bankers' acceptances provided in the ordinary course of business;
(9) Indebtedness of the Company or any Restricted Subsidiary
representing Capitalized Lease Obligations or incurred in
connection with the acquisition of fixed assets useful and
intended to be used in carrying on the business of the Company or
any such Restricted Subsidiary so long as the aggregate amount
outstanding of such Indebtedness
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<PAGE> 39
incurred pursuant to this clause would not at any time exceed
$10,000,000;
(10) Indebtedness of the Company or any Restricted
Subsidiary arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided
that such Indebtedness is extinguished within five business days
of incurrence;
(11) Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments in connection with the
acquisition or disposition of assets permitted under the
Indenture;
(12) Indebtedness of the Company pursuant to the Existing
Receivables Financing;
(13) Indebtedness of the Company pursuant to an Incremental
Receivables Financing, so long as (i) at the time such
Indebtedness is incurred and after giving effect thereto, no
Default or Event of Default has occurred and is continuing, and
(ii) the aggregate amount of such Indebtedness permitted under
this clause (13) shall not exceed at any one time outstanding an
amount equal to (x) $50,000,000 minus (y) the aggregate amount
outstanding under the Existing Receivables Financing minus (z) the
aggregate amount outstanding of any Indebtedness consisting of an
SPX Credit Lease Financing incurred pursuant to clause (14) below;
(14) Indebtedness of SPX Credit Corporation pursuant to an
SPX Credit Lease Financing, so long as (i) at the time such
Indebtedness is incurred and after giving effect thereto, no
Default or Event of Default has occurred and is continuing, and
(ii) the aggregate amount of such Indebtedness permitted under
this clause (14) shall not exceed at any one time outstanding an
amount equal to (x) $50,000,000 minus (y) the aggregate amount
outstanding under the Existing Receivables Financing minus (z) the
aggregate amount outstanding of any Indebtedness consist-
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<PAGE> 40
ing of an Incremental Receivables Financing pursuant to
clause (13) above;
(15) (i) Indebtedness of the Company, the proceeds of which
are used solely to refinance (whether by amendment, renewal,
extension or refunding) Indebtedness of the Company (including all
or a portion of the Securities) or any of its Restricted
Subsidiaries and (ii) Indebtedness of any Restricted Subsidiary of
the Company the proceeds of which are used solely to refinance
(whether by amendment, renewal, extension or refunding)
Indebtedness of such Restricted Subsidiary, in each case
outstanding on the Issue Date and other than the Indebtedness to
be refinanced, redeemed or retired from the proceeds of the
offering of the Securities; provided, however, that (A) the
principal amount of Indebtedness incurred pursuant to this clause
(15) (or, if such Indebtedness provides for an amount less than
the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof, the original
issue price of such Indebtedness) shall not exceed the sum of the
principal amount of Indebtedness so refinanced (or, if the
Indebtedness so refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, the original issue price
of such Indebtedness plus any accretion value attributable thereto
since the original issuance of such Indebtedness) plus the amount
of any premium required to be paid in connection with such
refinancing pursuant to the terms of such Indebtedness or the
amount of any premium reasonably determined by the Company as
necessary to accomplish such refinancing by means of a tender
offer or privately negotiated purchase, plus the amount of
expenses in connection therewith and (B) in the case of any
refinancing of Indebtedness that is not Senior Indebtedness, (1)
such new Indebtedness is made subordinate to the Securities in the
same manner and at least to the same extent as the Indebtedness
being refinanced and (2) such new Indebtedness has an Average Life
to Stated Maturity and final Stated Maturity of principal that
equals or exceeds the Average Life to Stated Maturity and final
Stated Maturity of principal, respectively, of the Indebtedness
being refinanced;
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(16) Indebtedness of the Company (including, without
limitation, Indebtedness under the Bank Credit Agreement in excess
of the amount permitted by clauses (1) and (2) above) in addition
to that described in clauses (1) through (15) above not to exceed
$25,000,000 outstanding at any time in the aggregate; or
(17) Indebtedness of any Restricted Subsidiary of the
Company pursuant to a guarantee of the obligations of the Company
under the Bank Credit Agreement.
Any accounts or lease receivables used for the purposes of
computing the amount of available Indebtedness under clause (2) above
shall not be used or pledged in connection with the incurrence of
Indebtedness under clauses (12), (13) and (14) above and vice versa.
"Permitted Investment" means any of the following: (i)
Investments by the Company or any Wholly Owned Restricted Subsidiary of the
Company in another person, if as a result of such Investment such other person
is merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets to the Company or such Wholly Owned Restricted
Subsidiary; (ii) Investments in short-term obligations of, or fully guaranteed
by, the United States of America; (iii) Investments in commercial paper rated
"P-1" or better by Moody's or "A-1" or better by S&P; (iv) Investments in
certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of
$100,000,000; (v) Investments in any mutual fund organized under the Investment
Company Act of 1940 or money market fund organized under the laws of the United
States of America or any state thereof which invests only in instruments
described in clause (ii), (iii) or (iv) above or (vii) below; (vi) Investments
representing Capital Stock or obligations issued to the Company or any of its
Restricted Subsidiaries in settlement of claims against any other person by
reason of a composition or readjustment of debt or a reorganization of any
debtor of the Company or of such Restricted Subsidiary; (vii) Investments in
Cash Equivalents; (viii) loans and advances to employees and officers of the
Company and its Restricted Subsidiaries made
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<PAGE> 42
in compliance with clause (ii) of the second sentence under Section 1016;
(ix) Investments by the Company or a Wholly Owned Restricted Subsidiary in
the Capital Stock of a Wholly Owned Restricted Subsidiary; (x) Investments
in any of the Securities; (xi) receivables owing to the Company or any
Restricted Subsidiary created in the ordinary course of business; and (xii)
Investments in any person in addition to that described in clauses (i) through
(xi) above not to exceed $10,000,000 in the aggregate at any time outstanding.
"person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for a mutilated security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Preferred Stock" means, with respect to any person, any and
all shares, interests, participation or other equivalents (however designated)
of such person's preferred or preference stock whether now outstanding or
issued after the Issue Date, and including, without limitation, all classes and
series of preferred or preference stock of such person.
"Public Equity Offering" means an underwritten public offering
of Capital Stock of the Company pursuant to a registration statement that has
been declared effective by the Commission pursuant to the Securities Act (other
than a registration statement on Form S-8 or any successor form thereto or
otherwise relating to equity securities issuable under any employee benefit
plan of such corporate entity); provided that the gross proceeds to the Company
therefrom are at least $50,000,000.
"Redeemable Capital Stock" means any class or series of
Capital Stock that, either by its terms, by the
27
<PAGE> 43
terms of any security into which it is convertible or exchangeable or by
contract or otherwise, is, or upon the happening of an event or passage of
time would be, required to be redeemed prior to any Stated Maturity of the
Securities or is redeemable at the option of the holder thereof at any time
prior to any Stated Maturity of the Securities or, at the option of the holder
thereof, is convertible into or exchangeable for debt securities at any time
prior to any Stated Maturity of the Securities.
"Redemption Date," when used with respect to any Securities to
be redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Statement" means the Registration Statement on
Form S-3 of the Company, No. 33-52833, filed with the Commission on March 28,
1994, as amended at the time such Registration Statement was declared effective
by the Commission under the Securities Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the or (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"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
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 or assigned by the Trustee to administer corporate trust matters at
its Corporate Trust Office, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
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"Restricted Payment" has the meaning set forth under Section
1011.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"SPT" has the meaning set forth under Section 1011.
"SPX Credit Lease Financings" means secured or unsecured
obligations of SPX Credit Corporation which are in the nature of sales or
pledges of undivided interests in a pool of leases of SPX Credit Corporation
(including any such leases which have been transferred to SPX Credit
Corporation by the Company or any of its other Subsidiaries in the ordinary
course of business consistent with past practices) and which are (a)
non-recourse to the Company and its other Subsidiaries, (b) otherwise incurred
on commercially reasonable terms and conditions for similar financing
transactions and negotiated on an arm's-length basis from an unaffiliated
lender and (c) permitted under clause (14) of the definition of Permitted
Indebtedness.
"S&P" means Standard & Poor's Corporation and its successors.
"Securities Act" means the Securities Act of 1933, as amended,
from time to time, and rules and regulations thereunder.
"Security" and "Securities" have the meaning stated in the
first recital of this Indenture and more particularly mean any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any,
and interest on any Indebtedness of the Company, whether outstanding on the
Issue Date or thereafter created, incurred or assumed, unless, in the case of
any particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securi-
29
<PAGE> 45
ties. Without limiting the generality of the foregoing, "Senior
Indebtedness" shall also include all obligations of the Company, whether
outstanding on the Issue Date or thereafter created, incurred or assumed, under
or in respect of the Bank Credit Agreement, whether for principal, interest
(including interest accruing after the filing of a petition initiating any
proceeding under any state, federal or foreign bankruptcy laws whether or not
allowable in such proceeding), reimbursement of amounts drawn under letters of
credit issued or arranged for pursuant thereto, obligations owed to the Banks
with respect to Interest Rate Protection Obligations incurred to satisfy the
requirements of the Bank Credit Agreement or otherwise and reimbursement of
other amounts, guarantees in respect thereof and all charges, fees, expenses
and other amounts in respect of the Bank Credit Agreement incurred by the Banks
in respect of the Bank Credit Agreement. Notwithstanding the foregoing,
"Senior Indebtedness" shall not include (a) Indebtedness evidenced by the
Securities, (b) Indebtedness that is expressly subordinate or junior in right
of payment to any Indebtedness of the Company, (c) Indebtedness which, when
incurred and without respect to any election under Section 1111(b) of the
Federal Bankruptcy Code, is by its terms without recourse to the Company, (d)
any repurchase, redemption or other obligation in respect of Redeemable Capital
Stock, (e) to the extent it might constitute Indebtedness, amounts owing for
goods, materials or services purchased in the ordinary course of business or
consisting of trade payables or other current liabilities (other than any
current liabilities owing under the Bank Credit Agreement or the current
portion of any long-term Indebtedness which would constitute Senior
Indebtedness but for the operation of this clause (e)), (f) to the extent it
might constitute Indebtedness, amounts owed by the Company for compensation to
employees or for services rendered to the Company, (g) to the extent it might
constitute Indebtedness, any liability for federal, state, local or other taxes
owed or owing by the Company, (h) Indebtedness of the Company to a Subsidiary
of the Company or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries and (i) that portion of any Indebtedness which at the time of
issuance is issued in violation of this Indenture.
"Significant Subsidiary" shall have the same meaning as in
Rule 1.02(v) of Regulation S-X under the
30
<PAGE> 46
Securities Act, provided that each Guarantor shall in all events be deemed a
Significant Subsidiary.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any
Security or any installment of interest thereon, the date specified in such
Security as the fixed date on which any principal of such Security or such
installment of interest is due and payable and, when used with respect to any
other Indebtedness or any installments of interest thereon, means any date
specified in the instrument governing such Indebtedness as the fixed date on
which the principal of such Indebtedness, or such installment of interest
thereon, is due and payable.
"Subordinated Indebtedness" means, with respect to the
Company, Indebtedness of the Company which is expressly subordinated in right
of payment to the Securities or, with respect to any Guarantor, Indebtedness of
such Guarantor which is expressly subordinated in right of payment to the
Guarantee of such Guarantor.
"Subsidiary" means, with respect to any person, (i) a
corporation a majority of whose Voting Stock is at the time, directly or
indirectly, owned by such person, by one or more Subsidiaries of such person or
by such person and one or more Subsidiaries of such person and (ii) any other
person (other than a corporation), including, without limitation, a joint
venture or partnership, in which such person, one or more Subsidiaries of such
person or such person and one or more Subsidiaries of such person, directly or
indirectly, at the date of determination thereof, has at least a majority
ownership interest entitled to vote in the election of directors, managers or
trustees thereof (or other person performing similar functions). For purposes
of this definition, any directors' qualifying shares or investments by foreign
nationals mandated by applicable law shall be disregarded in determining the
ownership of a Subsidiary.
"Surviving Entity" has the meaning set forth in Section 801.
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<PAGE> 47
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least two Business Days prior
to the date fixed for redemption of the Securities following a Change of
Control (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the then
remaining Average Life to Stated Maturity of the Securities; provided, however,
that if the Average Life to Stated Maturity of the Securities is not equal to
the constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the Average Life to Stated Maturity of the Securities is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such by the Company (a) no portion of the Indebtedness or any
other obligation (contingent or otherwise) of which (i) is guaranteed by the
Company or any other Subsidiary of the Company, (ii) is recourse to or
obligates the Company or any other Subsidiary of the Company in any way or
(iii) subjects any property or asset of the Company or any other Subsidiary of
the Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, (b) which has no Indebtedness or any other obligation
that, if in default in any respect (including a nonpayment default),
32
<PAGE> 48
would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Company or any Restricted Subsidiary to declare a default
on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity, (c) with which the Company or any other
Subsidiary of the Company has no contract, agreement, arrangement,
understanding or is subject to an obligation of any kind, whether written or
oral, other than a transaction on terms no less favorable to the Company or any
other Subsidiary of the Company than those which might be obtained at the time
from persons at arm's length who are not Affiliates of the Company and (d) with
which neither the Company nor any other Subsidiary of the Company has any
obligation (other than by the terms of the Indenture) (i) to subscribe for
additional shares of Capital Stock or other equity interest therein or (ii) to
maintain or preserve such Subsidiary's financial condition or to cause such
Subsidiary to achieve certain levels of operating results; provided, however,
that in no event shall any Guarantor be an Unrestricted Subsidiary. The
Company may designate an Unrestricted Subsidiary as a Restricted Subsidiary by
written notice to the Trustee under this Indenture; provided, however, that the
Company shall not be permitted to designate any Unrestricted Subsidiary as a
Restricted Subsidiary unless (A) after giving pro forma effect to such
designation, the Company would be permitted to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under this Indenture and (B)
any Indebtedness or Liens of such Unrestricted Subsidiary would be permitted to
be incurred by a Restricted Subsidiary of the Company under this Indenture. A
designation of an Unrestricted Subsidiary as a Restricted Subsidiary may not
thereafter be rescinded.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any person (irrespective of whether or not, at the
time, stock of any other class or classes shall have, or might have, voting
power by reason of the happening of any contingency).
"Wholly Owned Restricted Subsidiary" means (i) any Restricted
Subsidiary of the Company of which 100% of the outstanding Capital Stock is
owned by the Company or
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another Wholly Owned Restricted Subsidiary of the Company and (ii) SPT. For
purposes of this definition, any directors' qualifying shares or investments by
foreign nationals mandated by applicable law shall be disregarded in
determining the ownership of a Restricted Subsidiary.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
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<PAGE> 50
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
person or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other such persons as to other matters, and any such person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel know, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. 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
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<PAGE> 51
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing, and except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to TIA Section 315) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(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 Board Resolution, fix
in advance a record date for the determination of 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 TIA
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.
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 the purposes
of determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver
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<PAGE> 52
or other Act, and for this purpose the Securities then Outstanding shall be
computed as of such record date; provided that no such authorization, agreement
or consent 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.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Trustee, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to or filed with
(1) the Trustee by any Holder, the Banks, the holders of
Designated Senior Indebtedness or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or delivered
in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or delivered in
writing to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture, Attention: President, or at any other address
furnished in writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when deposited for mailing to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder, whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event as required by any provision of this Indenture,
then any method of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Conflict of Any Provision of Indenture with
Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties
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<PAGE> 54
imposed by Sections 310 to 318, inclusive, of the Trust Indenture Act or
conflicts with any provision (an "incorporated provision") required by or
deemed to be included in this Indenture by operation of such Trust Indenture
Act Sections, such imposed duties or incorporated provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or excluded, as the case
may be.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its respective successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any person (other than the parties hereto and their
successors hereunder, any Paying Agent, the Holders and the holders of Senior
Indebtedness) any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict-of-laws rules thereof.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity or Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
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Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Redemption Date
or at the Stated Maturity or Maturity; provided that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date,
Stated Maturity or Maturity, as the case may be, to the next succeeding
Business Day.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or
engraved or may be 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 Securities may be listed, all as determined by the officers of the
Company executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
SPX CORPORATION
% Senior Subordinated Note due 2002
No. $
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<PAGE> 56
CUSIP
SPX Corporation, a Delaware corporation (herein called the
"Company," which term includes any successor person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or registered assigns, the principal sum of Dollars on
, 2002, at the office or agency of the Company referred to below,
and to pay interest thereon on , 1994 and semi-annually
thereafter, on and in each year, from , 1994, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, at the rate of % per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the or
(whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Interest shall be computed on the basis
of a 360-day year of twelve 30-day months. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date, and such defaulted interest, and (to the extent
lawful) interest on such defaulted interest at the rate borne by the
Securities, may be paid to the person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than ten days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained
for that purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of
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public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the address of the person
entitled thereto as such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
SPX CORPORATION
By
Attest:
Authorized Signature
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company designated as its % Senior Subordinated Notes due 2002 (herein
called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $260,000,000,
which may be issued under an indenture (herein called the "Indenture") dated as
of May , 1994 between the Company and The Bank of New York, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon
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<PAGE> 58
which the Securities are, and are to be, authenticated and delivered.
This Security may be entitled after the date hereof to certain
senior subordinated Guarantees made for the benefit of the Holders. Reference
is hereby made to Section 1018 of the Indenture and to Exhibit A to the
Indenture for the terms of any Guarantee.
The Securities are, to the extent and in the manner provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness of the Company, whether outstanding
on the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder of this Security, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee his attorney-in-fact for such purpose.
The Securities are subject to redemption upon not less than 30
nor more than 60 days' notice, in amounts of $1,000 or an integral multiple of
$1,000 at any time on or after , 1998, as a whole or
in part, at the election of the Company, at a Redemption Price equal to the
percentage of the principal amount set forth below if redeemed during the
twelve-month period beginning , of the years indicated below:
Redemption
Year Price
- - ---- ----------
1998 %
------
1999 %
------
2000 and thereafter 100.00%
together in the case of any such redemption with accrued interest, if any, to
the Redemption Date, all as provided in the Indenture.
The Securities are not entitled to the benefit of any
mandatory sinking fund.
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In the case of any redemption of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Date referred to on the face hereof. Securities (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
Sections 1013 and 1014 of the Indenture provide that upon the
occurrence of a Change of Control and following any Asset Sale, and subject to
further limitations contained therein, the Company shall make an offer to
purchase certain amounts of the Securities at a purchase price and in
accordance with the procedures set forth in the Indenture.
In addition, upon the occurrence of a Change of Control, the
Securities will be redeemable, in whole or in part, at the option of the
Company, upon not less than 30 nor more than 60 days' prior notice to each
Holder of Notes to be redeemed, at a redemption price equal to the sum of (i)
the then outstanding principal amount thereof, plus (ii) accrued and unpaid
interest, if any, to the Redemption Date plus (iii) the Applicable Premium.
In addition, up to 30% of the aggregate principal amount of
the Securities outstanding on the Issue Date will be redeemable prior to
, 1996, at the option of the Company, within 45 days of the sale of Capital
Stock in a Public Equity Offering from the net proceeds of such sale at a
redemption price equal to % of the principal amount to be redeemed, together
with accrued and unpaid interest, if any, thereon to the Redemption Date.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
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The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Company and any Guarantor on this
Security and (b) certain restrictive covenants and the related Defaults and
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Security.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable on
the Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose in The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon
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<PAGE> 61
one or more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to pay all documentary, stamp or similar issue or transfer taxes
or other governmental charges payable in connection therewith.
Prior to the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict-of-laws
rules thereof.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 1013 or 1014 of the Indenture, check the appropriate box:
Section 1013 [ ]
Section 1014 [ ]
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<PAGE> 62
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 1013 or 1014 of the Indenture, state the
amount:
$
Date: Your Signature:
(Sign exactly as your name appears on the other side of
this Security)
Signature Guarantee:
SECTION 204. Form of Trustee's Certificate of
Authentication.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $260,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section
303, 304, 305, 306, 906, 1013, 1014 or 1108.
The Securities shall be known and designated as the " %
Senior Subordinated Notes due 2002" of the Company. Their Stated Maturity
shall be , 2002, and they shall bear interest at the rate
of % per
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<PAGE> 63
annum from , 1994, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable on
, 1994 and semi-annually thereafter on
and in each year, and at said Stated Maturity, until the
principal thereof is paid or duly provided for.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest may be paid by check mailed to addresses of
the persons entitled thereto as such addresses shall appear on the Security
Register.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
The Securities shall not be entitled to the benefits of any
sinking fund.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile signatures and may be imprinted or otherwise reproduced on
the Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper
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<PAGE> 64
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of one of
its duly authorized signatories, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other person or shall convey, transfer,
lease or otherwise dispose of substantially all of its properties and assets to
any person, and the successor person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
successor person which shall have received a conveyance, transfer, lease or
other disposition as aforesaid, shall have executed an indenture supplemental
hereto with the Trustee pursuant to Article Eight, any of the Securities
authenticated or delivered prior to such consolidation, merger, conveyance,
transfer, lease or other disposition may, from time to time, at the request of
the successor person, be exchanged for other Securities executed in the name of
the successor person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the
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<PAGE> 65
Trustee, upon Company Order of the successor person, shall authenticate and
deliver Securities as specified in such request for the purpose of such
exchange. If Securities shall at any time be authenticated and delivered in
any new name of a successor person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor person, at the option of any Holder but without expense to such
Holder, shall provide for the exchange of all Securities at the time
Outstanding held by such Holder for Securities authenticated and delivered in
such new name.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive securities of authorized denominations. Until
so exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
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SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. At all reasonable times, the
Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the "Security Registrar") for
the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange or redemption
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shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 303, 304, 906, 1013, 1014 or 1108 not involving
any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business (i) 15 days before the mailing of a notice of redemption of the
Securities selected for redemption under Section 1104 and ending at the close
of business on the day of such mailing or (ii) 15 days before an Interest
Payment Date and ending on the close of business on the Interest Payment Date,
or (b) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If (i) any mutilated Security is surrendered to the Trustee,
or (ii) the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute a contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
person in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided, however, that each installment of interest
may at the Company's option be paid by mailing a check for such interest,
payable to or upon the written order of the person entitled thereto pursuant to
Section 308, to the address of such person as it appears in the Security
Register.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable
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to the holder on the Regular Record Date by virtue of having been such Holder,
and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (1) or
(2) below:
(1) The Company may elect to make
payment of any Defaulted Interest to the persons in
whose names the Securities (or their respective
Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed
payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and
not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such
Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his
address as it appears on the Security Register, not
less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid
to the persons in whose names the Securities (or
their respective Predecessor Securities) are
registered at the close of business on such Special
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Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Company may make payment of any
Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and
upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued
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and sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of by the Trustee in accordance with its customary procedures
unless by Company Order the Company shall direct that cancelled Securities be
returned to it.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Securities herein expressly provided for) and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when
(1) either
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(a) all Securities theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying
Agent or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(b) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee,
under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds in trust solely
for the benefit of Holders for that purpose an amount in U.S. dollars
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the making of such Company Request
does not constitute a default under the Indenture or any
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other material agreement or instrument to which the Company is a party
or by which it is bound;
(3) the Company has paid or caused to be
paid all other sums payable hereunder by the Company;
and
(4) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606 and
any Guarantor's obligations in respect thereof and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. Money so held in trust shall not be subject to the provisions of
Article Thirteen of this Indenture.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
The occurrence of any one of the following events will be an
"Event of Default":
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(1) default in the payment of the
principal of (or premium, if any) when due and
payable, on any of the Securities (at its Stated
Maturity, upon optional redemption, required purchase
or otherwise), whether or not such payment shall be
prohibited by the provisions of Article Thirteen
hereof;
(2) default in the payment of an
installment of interest on any of the Securities,
when due and payable, and such default continues for
a period of 30 days, whether or not such payment
shall be prohibited by the provisions of Article
Thirteen hereof;
(3) the failure by the Company to make
or consummate an offer in accordance with Sections
1013 or 1014;
(4) the failure by the Company or any
Restricted Subsidiary to comply with its obligations
under Article Eight;
(5) the failure by the Company or any
Guarantor to perform or observe any other term,
covenant or agreement contained in the Securities or
this Indenture (other than a default specified in
Section 501(1), 501(2), 501(3) or 501(4)) for a
period of 30 days after written notice of such
failure requiring the Company to remedy the same
shall have been given (x) to the Company by the
Trustee or (y) to the Company and the Trustee by the
Holders of 25% in aggregate principal amount of the
Securities then Outstanding;
(6) (A) default or defaults under one or
more agreements, instruments, mortgages, bonds,
debentures or other evidences of Indebtedness under
which the Company or any Restricted Subsidiary of the
Company then has outstanding indebtedness in excess
of $10,000,000, individually or in the aggregate, and
either (i) such Indebtedness is already due and
payable in full or (ii) such default or defaults have
resulted in the acceleration of the maturity of such
Indebtedness, or (B) failure to pay such Indebtedness
beyond any applicable grace period when such
Indebtedness has been required to be prepaid or
repurchased (other than scheduled required prepay-
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ment) prior to the Stated Maturity of such
Indebtedness;
(7) one or more judgments, orders or
decrees of any court or regulatory or administrative
agency of competent jurisdiction for the payment of
money in excess of $10,000,000, individually or in
the aggregate, shall be entered against the Company
or any Restricted Subsidiary of the Company or any of
their respective properties and shall not have been
discharged or fully bonded, and either (1) any
creditor shall have commenced an enforcement
proceeding upon such judgment (other than a judgment
that is stayed by pending appeal or otherwise) or (2)
there shall have been a period of 60 days after the
date on which any period for appeal has expired and
during which a stay of enforcement of such judgment,
order or decree, shall not be in effect;
(8) any Guarantee ceases to be in full
force and effect (other than as provided in Section
1018(b)) or is declared null and void, or any
Guarantor denies that it has any further liability
under any Guarantee, or gives notice to such effect
(other than by reason of the termination of this
Indenture or the release of any such Guarantee in
accordance with this Indenture);
(9) a decree or order is entered by a
court having jurisdiction in the premises (i) for
relief in respect of the Company or any Significant
Subsidiary or one or more Subsidiaries which, in the
aggregate, would constitute a Significant Subsidiary
in an involuntary case or proceeding under the
Federal Bankruptcy Code or any other federal or state
bankruptcy, insolvency, reorganization or similar law
or (ii) adjudging the Company or any Significant
Subsidiary or one or more Subsidiaries which, in the
aggregate, would constitute a Significant Subsidiary
as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the
Company or any Significant Subsidiary or one or more
Subsidiaries which, in the aggregate, would
constitute a Significant Subsidiary under the Federal
Bankruptcy Code or any other similar applicable
federal or state law for the
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relief of debtors, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or any
Significant Subsidiary or one or more Subsidiaries
which, in the aggregate, would constitute a
Significant Subsidiary or of any substantial part of
any of their properties, or ordering the winding up
or liquidation of any of their affairs, and any such
decree or order remains unstayed and in effect for a
period of 60 consecutive days; or
(10) the Company or any Significant
Subsidiary or one or more Subsidiaries which, in the
aggregate, would constitute a Significant Subsidiary
institutes a voluntary case or proceeding under the
Federal Bankruptcy Code or any other similar
applicable federal or state law for the relief of
debtors or any other case or proceedings to be
adjudicated as bankrupt or insolvent, or the Company
or any Significant Subsidiary or one or more
Subsidiaries which, in the aggregate, would
constitute a Significant Subsidiary consents to the
entry of a decree or order for relief in respect of
the Company or any Significant Subsidiary or one or
more Subsidiaries which, in the aggregate, would
constitute a Significant Subsidiary in any
involuntary case or proceeding under the Federal
Bankruptcy Code or any other similar applicable
federal or state law for the relief of debtors or to
the institution of bankruptcy or insolvency
proceedings against the Company or any Significant
Subsidiary or one or more Subsidiaries which, in the
aggregate, would constitute a Significant Subsidiary
or the Company or any Significant Subsidiary or one
or more Subsidiaries which, in the aggregate, would
constitute a Significant Subsidiary files a petition
or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other
similar applicable federal or state law for the
relief of debtors, or consents to the filing of any
such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator (or other similar
official) of any of the Company or any Significant
Subsidiary or one or more Subsidiaries which, in the
aggregate, would constitute a Significant Subsidiary
or of any substantial part of its property, or makes
an assign-
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ment for the benefit of creditors, or is or are unable
to pay debts generally as they come due, or admits in writing
its or their inability to pay its or their debts generally as
they become due or takes corporate action in furtherance of
any such action.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than as specified in Section
501(9) or 501(10) with respect to the Company or any Significant Subsidiary)
shall occur and be continuing, the Trustee, by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the Securities then
Outstanding, by notice to the Trustee and the Company, may declare the
principal of, premium, if any, and accrued and unpaid interest, if any, on all
of the Outstanding Securities due and payable immediately, upon which
declaration, all amounts payable in respect of the Securities shall be
immediately due and payable. If an Event of Default specified in Section
501(9) or 501(10) with respect to the Company or any Significant Subsidiary (or
one or more Subsidiaries which, in the aggregate, would constitute a
Significant Subsidiary) occurs and is continuing, then the principal of,
premium, if any, and accrued and unpaid interest, if any, on all of the
Outstanding Securities 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 of Securities.
At any time after a declaration of acceleration has been made
and before a judgment or decree for payment of money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Securities Outstanding, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited
with the Trustee a sum sufficient to pay:
(A) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel,
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(B) all overdue interest on all
Outstanding Securities,
(C) all unpaid principal of and
premium, if any, on any Outstanding
Securities which has become due otherwise
than by such declaration of acceleration, and
interest on such unpaid principal at the rate
borne by the Securities, and
(D) to the extent that payment of
such interest is lawful, interest upon
overdue interest and overdue principal at the
rate borne by the Securities which has become
due otherwise than by such declaration of
acceleration;
(2) the rescission would not conflict
with any judgment or decree of a court of competent
jurisdiction; and
(3) all Events of Default, other than
the non-payment of amounts of principal of, premium,
if any, and interest on Securities that have become
due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of
any installment of interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of
the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and inter-
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est, and interest on any overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon any
overdue installment of interest, at the rate borne by the Securities; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate private or judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the
whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the
Securities
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and to file such 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 of the Holders
allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or
other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition or other
similar arrangement affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession
of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
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SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (any premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(4) the Trustee for 30 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period by the Holders of
a majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein and in such Security of
the principal of (and premium, if any) and interest on, such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and reme-
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dies of the Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) subject to the provisions of TIA Section 315, the
Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction, and
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(3) the Trustee need not take any action which involves it
in personal liability or is unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past Default or Event of Default hereunder and its
consequences, except a Default or Event of Default
(1) in the payment of the principal of (or premium, if any)
or interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of
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the payment of the principal of (or premium, if any) or interest on any
Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. 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, 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 which would prohibit or forgive the Company from
paying all or any portion of the principal of, premium, if any, or interest on
the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture and (to the extent that it may lawfully do so) 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 SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and is known to the Trustee, the Trustee shall transmit in the manner and to
the extent provided in TIA Section 313(c), notice of such Default hereunder
within 90 days after such occurrence, unless such Default shall have been cured
or waived; provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest on any Security,
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.
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SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument,
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opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or power
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required 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.
SECTION 603. Trustee Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-l supplied to the
Company
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are true and accurate, subject to the qualifications set forth therein. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
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(3) to indemnify each of the Trustee or any predecessor
Trustee for, and to hold it harmless against, any loss, damages,
claims or liability or expense, including taxes (other than taxes
based on the income of the Trustee), incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(9) or Section
501(10), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
SECTION 607. Conflicting Interests. The Trustee shall
comply with the provisions of Section 310(b) of the TIA.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $20,000,000 and have its Corporate
Trust Office in The City of New York (or if its Corporate Trust Office shall
not be located in The City of New
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York, which shall maintain an office in The City of New York where the
Securities may be presented or surrendered and notices and demands hereunder
may be served or made). If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 610.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company.
(c) The Trustee may be removed at any time by an Act of the
Holders of not less than a majority in principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section
608, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property
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or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, the
Company or Holders of at least 10% in principal amount of the Securities then
Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 106. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
(g) If the instrument of acceptance by a successor Trustee required by
Section 610 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the Trustee resigning or being
removed may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
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SECTION 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had
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itself authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312.
SECTION 702. Reports by Trustee.
Within 60 days after June 15 of each year commencing with the
first June 15 after the first issuance of Securities, the Trustee shall
transmit to the Holders, in the manner and to the extent provided in TIA
Section 313(c), a brief report dated as of such June 15 if required by TIA
Section 313(a).
SECTION 703. Reports by Company.
The Company will file, to the extent permitted under the
Exchange Act, with the Commission the annual reports, quarterly reports and
other documents required
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to be filed with the Commission pursuant to Sections 13 and 15 of the Exchange
Act, whether or not the Company has a class of securities registered under the
Exchange Act. The Company will file with the Trustee, and provide to each
Holder, as their names and addresses appear in the Security Register, copies of
such reports and documents within 15 days after it files them with the
Commission or, if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, within 15 days after it would otherwise
have been required to file such reports and documents if permitted, in each
case at the Company's cost.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
(a) The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any person or persons, and the Company
will not permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or of the Company and its Restricted
Subsidiaries, taken as a whole, to any other person or persons, unless at the
time and after giving effect thereto:
(i) either (A)(1) if the transaction or transactions is a
merger or consolidation involving the
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Company, the Company shall be the surviving person of such
merger or consolidation or (2) if the transaction or transactions is a
merger or consolidation involving a Restricted Subsidiary of the
Company, such Restricted Subsidiary shall be the surviving person and
such surviving person shall be a Restricted Subsidiary of the Company
or (B)(1) the person formed by such consolidation or into which the
Company or such Restricted Subsidiary is merged or to which the
properties and assets of the Company or such Restricted Subsidiary, as
the case may be, substantially as an entirety, are transferred (any
such surviving person or transferee person being the "Surviving
Entity") shall be a corporation organized and existing under the laws
of the United States of America, any state thereof or the District of
Columbia and (2)(x) in case of a transaction involving the Company,
the Surviving Entity shall expressly assume by a supplemental
indenture executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the
Securities and this Indenture, and in each case, the Indenture shall
remain in full force and effect or (y) in the case of a transaction
involving a Restricted Subsidiary that is a Guarantor, the Surviving
Entity shall expressly assume by a supplemental indenture executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of such Restricted Subsidiary under its Guarantee and
related supplemental indenture, and in each case, such Guarantee and
supplemental indenture shall remain in full force and effect;
(ii) immediately before and immediately after giving effect
to such transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), no Default or Event of Default
shall have occurred and be continuing and the Company, or the
Surviving Entity, as the case may be, after giving effect to such
transaction or series of transactions on a pro forma basis, could
incur $1.00 of additional Indebtedness under Section 1010 (assuming a
market rate of interest with respect to such additional Indebtedness);
and
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(iii) immediately after giving effect to such transaction,
the Surviving Entity shall have a Consolidated Net Worth in an amount
which is not less than the Consolidated Net Worth of the Company or
such Restricted Subsidiary, as the case may be, immediately prior to
such transaction;
provided that, subject to paragraph (b) below, a Wholly Owned Restricted
Subsidiary may consolidate with, or merge with or into, or convey, transfer or
lease all or substantially all its assets to, the Company or another Wholly
Owned Restricted Subsidiary.
In connection with any consolidation, merger, transfer, lease
or other disposition contemplated hereby, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, transfer, lease or other disposition and the
supplemental indenture, if any, in respect thereof comply with the requirements
under this Indenture. In addition, each Guarantor, if any, unless it is the
other party to the transaction or unless its Guarantee will be released and
discharged in accordance with its terms as a result of the transaction, will be
required to confirm, by supplemental indenture, that its Guarantee of the
Securities will apply to the obligations of the Company or the Surviving Entity
under this Indenture.
(b) A Guarantor shall not, and the Company shall not permit a
Guarantor to, consolidate with or merge with or into any person unless:
(i) except in the circumstances where the Guarantee of the
Guarantor is to be released in accordance with Section 1407, such
Guarantor or, if the merger or consolidation involves the Company, the
Company shall be the continuing person or the resulting or surviving
person (the "surviving entity") and shall be a corporation organized
and existing under the laws of the United States or any state thereof
or the District of Columbia;
(ii) except in the circumstances where the Guarantee of the
Guarantor is to be released in accordance with Section 1407 or where
the Company is
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the surviving entity, the surviving entity shall expressly
assume, by a supplemental indenture executed and delivered to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
all of the obligations of such Guarantor under this Indenture, as
modified by such supplemental indenture, and its Guarantee; and
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation or merger, and if a supplemental indenture is
required in connection with such transaction or series of
transactions, such supplemental indenture complies with this Section
801(b) and that all conditions precedent provided for in this
Indenture relating to the transaction or series of transactions have
been satisfied.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the Company
with or into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety to any person
in accordance with Section 801, the Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Surviving Entity had been named
as the Company herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the person named as the
"Company" in the first paragraph of this Indenture or any Surviving Entity
which shall theretofore become such in the manner described in Section 801),
except in the case of a lease, shall be discharged of all obligations and
covenants under this Indenture and the Securities and may be dissolved and
liquidated.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities;
(2) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred
upon the Company;
(3) to add any additional Events of Default;
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the
requirements of Section 610;
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture; provided that such action shall
not adversely affect the interests of the Holders;
(6) to add any Subsidiary as a Guarantor pursuant to the
terms of Article Fourteen;
(7) to secure the Securities pursuant to the requirements of
Section 1012 or otherwise;
(8) to make any other change that does not adversely affect
the rights of any Holder; or
(9) to comply with the TIA.
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Notwithstanding the above, the Trustee and the Company may not
make any change that adversely affects the legal rights of any Holders
hereunder. The Company shall be required to deliver to the Trustee an Opinion
of Counsel stating that any such change under this Section 901 does not
adversely affect the rights of any Holder.
SECTION 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) reduce the principal amount outstanding of or extend the
fixed maturity of any Security or alter the redemption provisions with
respect thereto;
(2) make the principal of, premium, if any, or interest on
any Security payable in money other than that stated in the Security;
(3) reduce the percentage in outstanding aggregate principal
amount of Securities the Holders of which must consent to an
amendment, supplement or waiver of any provision of this Indenture,
the Securities or any Guarantee;
(4) impair the right to institute suit for the enforcement
of any payment on or with respect to the Securities;
(5) waive a default in the payment of the principal of,
premium, if any, or interest on, or redemption or an offer to purchase
required hereunder with respect to, any Security;
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(6) amend, change or modify the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change
of Control or make and consummate the offer with respect to any Asset
Sale or modify any of the provisions or definitions with respect
thereto;
(7) reduce or change the rate or time for payment of
interest on any Security;
(8) modify or change any provision of this Indenture
affecting the subordination of the Securities or any Guarantee in a
manner adverse to the Holders;
(9) release any Guarantor from any of its obligations under
its Guarantee or this Indenture other than in compliance with Section
1407 of Exhibit A hereto; or
(10) modify this Section 902 or Section 508 or Section 513.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 602 hereof) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders that it will duly and punctually pay the principal of (and premium, if
any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
The Company shall pay interest on overdue principal at the
rate borne by the Securities; it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Corporate Trust Office of the Trustee
shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation
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to maintain an office or agency in 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 any change in the location of any such other office or
agency.
SECTION 1003. Money for Security Payments to Be Held in
Trust.
Subject to Article Thirteen, if the Company shall at any time
act as its own Paying Agent, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities,
segregate and hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Subject to Article Thirteen, whenever the Company shall have
one or more Paying Agents for the Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on, any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the persons entitled to such principal, premium or interest, and,
unless such Paying Agent is the Trustee, the Company will promptly notify the
Trustee of such action or any failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will, subject to Article Thirteen:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities in trust
for the benefit of the persons entitled thereto until such sums shall
be paid to such persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securi-
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ties) in the making of any payment of principal (and premium,
if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
Subject to Article Thirteen, the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
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SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such existence (except of the Company), right or
franchise if the Board of Directors shall determine that the preservation there
of is no longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of the
Company or any Restricted Subsidiary; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the
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Company from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
The Company will at all times keep all of its and its
Restricted Subsidiaries' properties which are of an insurable nature insured
with insurers, believed by the Company to be responsible, against loss or
damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties.
SECTION 1008. Compliance Certificate.
The Company shall deliver to the Trustee within 60 days after
the end of each of the Company's first three fiscal quarters and within 120
days after the end of each of the Company's fiscal years an Officers'
Certificate stating the signers' knowledge of the Company's compliance with all
conditions and covenants under this Indenture. If they do know of any Default
or Event of Default, the certificate shall describe any such Default or Event
of Default and its status. The first certificate to be delivered pursuant to
this Section 1008 shall be for the first fiscal quarter of the Company ending
after the Issue Date. One of the signers of such Officers' Certificate shall
be the Company's principal executive, financial or accounting officer. Such
compliance shall be determined without regard to any period of grace or
requirement of notice provided herein.
SECTION 1009. Notice of Default.
The Company shall deliver to the Trustee within ten days after
the Company becomes aware or should reasonably have become aware of the
occurrence of any event which is, or after notice or lapse of time or both
would become, an Event of Default, an Officers' Certificate specifying such
Default or Event of Default, the period of existence thereof and what action
the Company is taking or proposes to take with respect thereto.
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SECTION 1010. Limitation on Indebtedness.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or in any other manner become directly or indirectly liable
(in each case, to "incur") for the payment of any Indebtedness (including any
Acquired Indebtedness but excluding Permitted Indebtedness); provided, however,
that (i) the Company will be permitted to incur Indebtedness (including
Acquired Indebtedness), contingently or otherwise, if at the time of such
incurrence, and after giving pro forma effect thereto, the Consolidated Fixed
Charge Coverage Ratio of the Company and its Restricted Subsidiaries is at
least equal to 2.0 to 1.0 through , 1996 and 2.25 to 1 thereafter and
(ii) in the case of Subordinated Indebtedness, such Indebtedness has no
scheduled principal payment on or prior to the Stated Maturity for the final
scheduled principal payment of the Securities.
SECTION 1011. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other
distribution or payment on or in respect of Capital Stock of the
Company or any payment made to the direct or indirect holders (in
their capacities as such) of Capital Stock of the Company (other
than dividends or distributions payable solely in Capital Stock
(other than Redeemable Capital Stock) or rights to purchase
Capital Stock of the Company (other than Redeemable Capital
Stock));
(ii) purchase, redeem, defease or otherwise acquire or
retire for value, directly or indirectly, any Capital Stock of the
Company or any Affiliate of the Company (other than any such
Capital Stock of any Wholly Owned Restricted Subsidiary of the
Company);
(iii) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise
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acquire or retire for value, prior to any scheduled maturity
(unless within one year of maturity), scheduled repayment,
scheduled sinking fund payment or other Stated Maturity, any
Subordinated Indebtedness;
(iv) make any Investment (other than any Permitted
Investment) in any person, including any Unrestricted Subsidiary
(other than in the Company, a Wholly Owned Restricted Subsidiary
of the Company or a person that becomes a Wholly Owned Restricted
Subsidiary as a result of such Investment); or
(v) declare or pay any dividend or make any other
distribution on or in respect of any Capital Stock of any
Subsidiary to the direct or indirect holders (in their capacities
as such) of Capital Stock of the Subsidiary (other than with
respect to Capital Stock held by the Company or any of its Wholly
Owned Restricted Subsidiaries) or any purchase, redemption or
other acquisition or retirement for value, of any Capital Stock of
any Subsidiary (other than any such Capital Stock held by the
Company or any Wholly Owned Restricted Subsidiary);
(such payments, dividends, distributions, purchases, defeasances, repurchases,
redemptions, acquisitions, retirements or Investments described in the
preceding clauses (i) through (v) are collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than in
cash, being as determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), (A) no
Default or Event of Default shall have occurred and be continuing, (B) the
aggregate amount of all Restricted Payments declared or made from and after the
date immediately following the Issue Date would not exceed the sum of (1) 50%
of the aggregate Consolidated Net Income of the Company accrued on a cumulative
basis during the period (treated as one accounting period) beginning on
December 31, 1993 and ending on the last day of the fiscal quarter of the
Company immediately preceding the date of such proposed Restricted Payment (or,
if such aggregate cumulative Consolidated Net Income of the Company for such
period shall be a deficit, minus 100% of such deficit) plus (2) the
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aggregate net cash proceeds received by the Company after the Issue Date from
the issuance or sale (other than to any of its Restricted Subsidiaries) of
Capital Stock (excluding Redeemable Capital Stock but including Capital Stock
issued upon the conversion of convertible Indebtedness or in exchange for
outstanding Indebtedness (to the extent such Indebtedness is originally sold
for cash) or from the exercise of options, warrants or rights to purchase
Capital Stock (other than Redeemable Capital Stock)) of the Company to any
person (other than to a Restricted Subsidiary of the Company) (except, in each
case, to the extent such proceeds are used to purchase, redeem or otherwise
retire Capital Stock or Subordinated Indebtedness as set forth below), plus (3)
in the case of the disposition or repayment of any Investment constituting a
Restricted Payment made after the Issue Date (excluding any Investment made
pursuant to clause (v) of the following paragraph), an amount equal to the
lesser of the return of capital with respect to such Investment and the cost of
such Investment, in either case, less the cost of the disposition of such
Investment and (C) the Company could incur $1.00 of additional Indebtedness
under Section 1010. For purposes of the preceding clause (B)(2), the value of
the aggregate net proceeds received by the Company upon the issuance of Capital
Stock, either upon the conversion of convertible Indebtedness or in exchange
for outstanding Indebtedness or upon the exercise of options, warrants or
rights will be the net cash proceeds received upon the issuance of such
Indebtedness, options, warrants or rights plus the incremental amount received
by the Company upon the conversion, exchange or exercise thereof.
(b) None of the foregoing provisions will prohibit: (i) the
payment of any dividend within 90 days after the date of its declaration, if at
the date of declaration such payment would be permitted by the foregoing
paragraph (a); (ii) the redemption, repurchase or other acquisition or
retirement of any shares of any class of Capital Stock of the Company or any
Restricted Subsidiary of the Company in exchange for (including any such
exchange pursuant to a conversion right or privilege in connection with which
cash is paid in lieu of fractional shares or scrip), or out of the net cash
proceeds of, a substantially concurrent issue and sale of other shares of
Capital Stock (other than Redeemable Capital Stock) of the Company to any
person (other than to a
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Restricted Subsidiary of the Company); provided, however, that such net cash
proceeds are excluded from clause (B)(2) of the preceding paragraph (a); (iii)
any redemption, defeasance, repurchase or other acquisition or retirement for
value (each for purposes of this clause, a "refinancing") of Pari Passu
Indebtedness or Subordinated Indebtedness by exchange for, or out of the net
cash proceeds of, a substantially concurrent issue and sale of (1) Capital
Stock (other than Redeemable Capital Stock) of the Company; provided, however,
that any such net cash proceeds are excluded from clause (B)(2) of the
preceding paragraph (a); or (2) new Indebtedness of the Company so long as such
Indebtedness (A) is pari passu with or expressly subordinated in right of
payment to the Securities in the same manner and at least to the same extent as
the Securities are subordinated to Senior Indebtedness, (B) has a principal
amount that does not exceed the principal amount so refinanced plus the amount
of any premium required to be paid in connection with such refinancing pursuant
to the terms of the Indebtedness refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such
refinancing, plus the amount of fees and expenses of the Company incurred in
connection with such refinancing; provided that for purposes of this clause,
the principal amount of any Indebtedness shall be deemed to mean the principal
amount thereof or if such indebtedness provides for an amount less than the
principal amount thereof upon a declaration of acceleration thereof, such
lesser amount as of the date of determination, (C) has a Stated Maturity for
the final scheduled principal payment of such Indebtedness on or later than the
Stated Maturity for the final scheduled principal payment of the Securities and
(D) has an Average Life to Stated Maturity that equals or exceeds the Average
Life to Stated Maturity of the Securities; (iv) the redemption or repurchase of
the limited partnership interests of Sealed Power Technologies Limited
Partnership ("SPT") owned by certain employees of SPT on the Issue Date for an
aggregate amount not to exceed $3,000,000; (v) so long as no Default of Event
or Default shall have occurred and be continuing, the making of (x) Investments
constituting Restricted Payments and (y) other Restricted Payments such that,
after giving effect thereto, the sum of the aggregate outstanding amount of
such Investments (valued at their cost) referred to in clause (x) made after
the Issue Date and the aggregate amount of such other Restricted Payments
referred to in
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clause (y) made after the Issue Date would not exceed $10,000,000; or (vi)
Investments constituting Restricted Payments made as a result of the receipt of
non-cash consideration from any Asset Sale made pursuant to and in compliance
with Section 1014. In computing the amount of Restricted Payments for the
purposes of clause (B) of the preceding paragraph, Restricted Payments made
under (i) and (vi) shall be included.
SECTION 1012. Limitation on Liens.
The Company will not and will not permit any Restricted
Subsidiary to create, incur, assume or suffer to exist any Lien of any kind
upon any of its property or assets, now owned or hereafter acquired, to secure
any Pari Passu Indebtedness or Subordinated Indebtedness unless prior to or
contemporaneously therewith the Securities are secured equally and ratably;
provided that (1) if such secured Indebtedness is Pari Passu Indebtedness, the
Lien securing such Pari Passu Indebtedness shall rank equally and ratably with
the Lien securing the Securities and (2) if such secured Indebtedness is
Subordinated Indebtedness, the Lien securing such Subordinated Indebtedness
shall be subordinate and junior to the Lien securing the Securities at least to
the same extent as such Subordinated Indebtedness is subordinated to the
Securities. The foregoing shall not apply to any Lien securing Acquired
Indebtedness of the Company; provided that any such Lien only extends to the
assets that were subject to such Lien prior to the related acquisition by the
Company and was not created, incurred or assumed in contemplation of such
transaction. The foregoing shall not apply to the incurrence of Indebtedness
pursuant to clause (9), (12), (13) or (14) of the definition of "Permitted
Indebtedness."
SECTION 1013. Purchase of Securities upon Change of Control.
Upon the occurrence of a Change of Control, the Company shall
be obligated to make an offer to purchase (a "Change of Control Offer") and
shall, subject to the provisions described below, purchase, on a Business Day
(the "Change of Control Purchase Date") not more than 60 nor less than 30 days
following the occurrence of the Change of Control, all of the then Outstanding
Securities at a purchase price (the "Change of Control Purchase
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Price") equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Change of Control Purchase Date; provided, however,
that notwithstanding the occurrence of a Change of Control, the Company shall
not be obligated to make a Change of Control Offer in the event that it has
exercised its right to redeem all of the Securities as described in Section
1101 and the form of Securities in Section 203 within 30 days after the
occurrence of such Change of Control. The Company shall, subject to the
provisions described below, be required to purchase all Securities properly
tendered into the Change of Control Offer and not withdrawn. Prior to the
mailing of the notice to holders provided for below, the Company shall have (x)
terminated all commitments and repaid in full all Indebtedness under the Bank
Credit Agreement, or offered to terminate such commitments and repay in full
such Indebtedness and have in fact terminated the commitments of and repaid all
Indebtedness of any lender under the Bank Credit Agreement who accepts such
offer or (y) obtained the requisite consents under the Bank Credit Agreement to
permit the purchase of the Securities as provided for in this Section 1013. If
a notice has been mailed when such condition precedent has not been satisfied,
the Company shall have no obligation to (and shall not) effect the purchase of
Securities until such time as such condition precedent is satisfied. Failure to
mail the notice on the date specified below or to have satisfied the foregoing
condition precedent by the date that the notice is required to be mailed shall
in any event constitute a covenant Default under clause (3) of Section 501.
Notice of a Change of Control Offer shall be mailed by the
Company not later than the 30th day after the Change of Control to the Holders
of Securities at their last registered addresses with a copy to the Trustee and
the Paying Agent. The Change of Control Offer shall remain open from the time
of mailing for at least 20 Business Days and until 5:00 p.m., New York City
time, on the Business Day immediately prior to the Change of Control Purchase
Date. The notice, which shall govern the terms of the Change of Control Offer,
shall include such disclosures as are required by law and shall state:
(a) that the Change of Control Offer is
being made pursuant to this Section 1013 and that all Securities
validly tendered into the Change of
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Control Offer and not withdrawn shall be accepted for payment;
(b) the Change of Control Purchase Price (including the
amount of accrued interest, if any) for each Security, the Change
of Control Purchase Date and the date on which the Change of
Control Offer expires;
(c) that any Security not tendered for payment will continue
to accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of
the Change of Control Purchase Price, any Security accepted for
payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date;
(e) that Holders electing to have Securities purchased
pursuant to a Change of Control Offer will be required to
surrender their Securities to the Paying Agent at the address
specified in the notice prior to 5:00 p.m., New York City time, on
the Business Day before the Change of Control Purchase Date and
must complete any form letter of transmittal proposed by the
Company and acceptable to the Trustee and the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw
their election if the Paying Agent receives, not later than 5:00
p.m., New York City time, on the Business Day before the Change of
Control Purchase Date, or such longer period as may be required by
law, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of Securities the Holder
delivered for purchase, the Security certificate number (if any)
and a statement that such holder is withdrawing its election to
have such Securities purchased;
(g) that Holders whose Securities are purchased only in part
will be issued Securities equal in principal amount to the
unpurchased portion of the Securities surrendered;
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(h) the instructions that Holders must follow in order to
tender their Securities; and
(i) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with
the Commission pursuant to the Exchange Act (or, if the Company is
not then required to file any such reports with the Commission,
the comparable reports prepared pursuant to Section 703), a
description of material developments in the Company's business,
historical financial information after giving effect to such
Change of Control and such other information concerning the
circumstances and relevant facts regarding such Change of Control
and Change of Control Offer as would be material to a Holder of
Securities in connection with the decision of such Holder as to
whether or not it should tender Securities pursuant to the Change
of Control Offer, including information regarding the persons
acquiring control and such persons' business plans going forward.
On the Change of Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof validly tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent money, in
immediately available funds, sufficient to pay the Change of Control Purchase
Price of all Securities or portions thereof so tendered and accepted, and (iii)
deliver to the Trustee the Securities so accepted together with an Officers'
Certificate setting forth the Securities or portions thereof tendered to and
accepted for payment by the Company. The Paying Agent shall promptly mail or
deliver to the Holders of Securities so accepted payment in an amount equal to
the Change of Control Purchase Price, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company shall publicly announce the results of the
Change of Control Offer not later than the first Business Day following the
Change of Control Purchase Date.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a
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third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
The Company shall comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act, and any other securities
laws or regulations in connection with the repurchase of Securities pursuant to
a Change of Control Offer.
SECTION 1014. Disposition of Proceeds of Asset Sales.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any Asset Sale unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the fair market value, as determined in
good faith by the Board of Directors of the Company, of the shares or assets
sold or otherwise disposed of and (ii) at least 85% of such consideration
consists of cash and Cash Equivalents. To the extent that the Net Cash
Proceeds of any Asset Sale are not required by the terms of any Senior
Indebtedness to be applied to prepay Senior Indebtedness (and thereby
permanently reduce the commitments or amounts available to be reborrowed under
such Senior Indebtedness as required by the terms thereof), or are not so
applied, the Company or a Restricted Subsidiary, as the case may be, may apply
the Net Cash Proceeds from such Asset Sale, within 360 days of such Asset Sale,
to an investment in properties and assets other than working capital that
replace the properties and assets that were the subject of such Asset Sale or
in properties and assets other than working capital that will be used in the
business of the Company and its Restricted Subsidiaries existing on the Issue
Date or in businesses reasonably related thereto ("Replacement Assets") so long
as the Company or such Restricted Subsidiary has notified the Trustee in
writing within 270 days of such Asset Sale that it has determined to apply the
Net Cash Proceeds from such Asset Sale to an investment in such Replacement
Assets. Any Net Cash Proceeds from any Asset Sale not applied as provided in
the preceding two sentences within 360 days of such Asset
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Sale constitute "Excess Proceeds" subject to disposition as provided in
paragraph (b) below.
(b) When the aggregate amount of Excess Proceeds equals
$10,000,000 or more, the Company shall apply the Excess Proceeds to the
repayment of the Securities and any Pari Passu Indebtedness required to
be repaid or repurchased under the instrument governing such Pari Passu
Indebtedness as follows: (i) the Company shall make an offer to purchase (an
"Asset Sale Offer") to all Holders of the Securities in accordance with
paragraph (e) of this Section in the maximum principal amount (expressed as a
multiple of $1,000) of Securities that may be purchased out of an amount (the
"Securities Amount") equal to the product of such Excess Proceeds multiplied by
a fraction, the numerator of which is the Outstanding principal amount of the
Securities, and the denominator of which is the sum of the Outstanding
principal amount of the Securities and the outstanding principal amount of such
Pari Passu Indebtedness (subject to proration in the event such Securities
Amount is less than the aggregate Asset Sale Offer Price of all Securities
tendered) and (ii) to the extent required by such Pari Passu Indebtedness to
permanently reduce the principal amount of such Pari Passu Indebtedness, the
Company shall make an offer to purchase or otherwise repurchase or redeem Pari
Passu Indebtedness (a "Pari Passu Offer") in an amount (the "Pari Passu Debt
Amount") equal to the excess of the Excess Proceeds over the Securities Amount;
provided that in no event shall the Company be required to make a Pari Passu
Offer in a Pari Passu Debt Amount exceeding the principal amount of such Pari
Passu Indebtedness plus the amount of any premium required to be paid to
repurchase such Pari Passu Indebtedness. The offer price shall be payable in
cash in an amount equal to 100% of the principal amount of the Securities to be
purchased plus accrued and unpaid interest, if any, thereon (the "Asset Sale
Offer Price") to the date (the "Asset Sale Offer Date") such Asset Sale Offer
is consummated, in accordance with the procedures set forth in paragraph (e) of
this Section. To the extent that the aggregate Asset Sale Offer Price of the
Securities tendered pursuant to the Asset Sale Offer is less than the
Securities Amount relating thereto or the aggregate amount of Pari Passu
Indebtedness that is purchased is less than the Pari Passu Debt Amount (the
amount of such shortfall, if any, in either case constituting a "Deficiency"),
the Company
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shall use such Deficiency in any manner. Upon completion of the purchase of
all the Securities tendered pursuant to an Asset Sale Offer and repurchase of
the Pari Passu Indebtedness pursuant to a Pari Passu Offer, the amount of
Excess Proceeds, if any, shall be reset at zero.
(c) Whenever the Excess Proceeds received by the Company
exceed $5,000,000, such Excess Proceeds shall, prior to the purchase of
Securities or any Pari Passu Indebtedness described in paragraph (b) above, be
set aside by the Company in a separate account pending (i) deposit with the
depositary or a Paying Agent of the amount required to purchase the Securities
or Pari Passu Indebtedness tendered in an Asset Sale Offer or a Pari Passu
Offer, respectively, (ii) delivery by the Company of the Asset Sale Offer Price
to the holders of the Securities or Pari Passu Indebtedness tendered in an
Asset Sale Offer or a Pari Passu Offer, respectively, and (iii) application,
as set forth above, of Excess Proceeds in the business of the Company and its
Restricted Subsidiaries. Such excess proceeds may be invested in Cash
Equivalents; provided that the maturity date of any such investment shall not
be later than (A) in the event the amount of Excess Proceeds equals $7,000,000
or more, the Asset Sale Offer Date, or (B) in any other event, six months. The
Company shall be entitled to any interest or dividends accrued, earned or paid
on such Cash Equivalents; provided that the Company shall not be entitled to
such interest, and shall not withdraw such interest from the separate account,
if an Event of Default has occurred and is continuing.
(d) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction (other than restrictions existing under (i) Indebtedness as in
effect on the Issue Date as such Indebtedness may be refinanced or replaced
from time to time or (ii) any Senior Indebtedness existing on the Issue Date
or thereafter, provided that such restrictions contained in such refinanced
Indebtedness are no less favorable to the Holders of Securities than those
existing on the date of the Indenture) that would materially impair the
ability of the Company to make an Asset Sale Offer or, if such Asset Sale Offer
is made, to pay for the Securities tendered for purchase.
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(e) Notice of an Asset Sale Offer shall be mailed by the
Company to all Holders of Securities not less than 20 Business Days nor more
than 40 Business Days before the Asset Sale Purchase Date at their last
registered address with a copy to the Trustee and the Paying Agent. The Asset
Sale Offer shall remain open from the time of mailing for at least 20 Business
Days and until at least 5:00 p.m., New York City time, on the Business Day
before the Asset Sale Purchase Date. The notice, which shall govern the terms
of the Asset Sale Offer, shall include such disclosures as are required by law
and shall state:
(1) that the Asset Sale Offer is being made pursuant to
this Section 1014;
(2) the Asset Sale Offer Price (including the amount of
accrued interest, if any) for each Security, the Asset Sale
Purchase Date and the date on which the Asset Sale Offer expires;
(3) that any Security not tendered or accepted for payment
will continue to accrue interest in accordance with the terms
thereof;
(4) that, unless the Company shall default in the payment of
the Asset Sale Offer Price, any Security accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest
after the Asset Sale Purchase Date;
(5) that Holders electing to have Securities purchased
pursuant to an Asset Sale Offer will be required to surrender
their Securities to the Paying Agent at the address specified in
the notice prior to 5:00 p.m., New York City time, on or prior to
the Asset Sale Purchase Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee
and the Paying Agent;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Business Day before the Asset Sale Purchase
Date, or such longer period as may be required by law, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of Securities
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the Holder delivered for purchase, the Security certificate
number (if any) and a statement that such Holder is withdrawing
its election to have such Securities purchased;
(7) that if Securities in a principal amount in excess of
the Holder's pro rata share of the amount of Excess Proceeds are
tendered pursuant to the Asset Sale Offer, the Company shall
purchase Securities on a pro rata basis among the Securities
tendered (with such adjustments as may be deemed appropriate by
the Company so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities are purchased only in part
will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered;
(9) the instructions that Holders must follow in order to
tender their Securities; and
(10) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with
the Commission pursuant to the Exchange Act (or, if the Company is
not required or permitted to file any such reports with the
Commission, the comparable reports prepared pursuant to Section
703), a description of material developments in the Company's
business, pro forma historical financial information after giving
effect to such Asset Sale and Asset Sale Offer and information
concerning the circumstances and relevant facts regarding such
Asset Sale and Asset Sale Offer as would be material to a Holder
of the Securities in connection with the decision of such Holder
as to whether or not it should tender Securities pursuant to the
Asset Sale Offer.
(f) On the Asset Sale Purchase Date, the Company shall (i)
accept for payment, on a pro rata basis, Securities or portions thereof
tendered pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent
money, in immediately available funds, in an amount sufficient to pay the
Asset Sale Offer Price of all Securities or portions thereof so tendered and
accepted
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and (iii) deliver to the Trustee the Securities so accepted together with an
Officers' Certificate setting forth the Securities or portions thereof tendered
to and accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Securities so accepted payment in an amount equal
to the Asset Sale Offer Price, and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale
Offer not later than the first Business Day following the Asset Sale Purchase
Date. To the extent that the aggregate principal amount of Securities tendered
pursuant to an offer to purchase is less than the Excess Proceeds, the Company
may use such Deficiency in any manner. Upon completion of such an offer to
purchase, the amount of Excess Proceeds shall be reset to zero. For purposes
of this Section 1014, the Trustee shall act as Paying Agent.
(g) The Company shall comply, to the extent applicable,
with the requirements of Rule 14e-1 under the Exchange Act, and any other
securities laws or regulations in connection with the repurchase of Securities
pursuant to the Asset Sale Offer.
SECTION 1015. Limitation on Issuance and Sale of Capital
Stock by Restricted Subsidiaries.
The Company (i) will not permit any of its Restricted
Subsidiaries to issue any Capital Stock (other than to the Company or a Wholly
Owned Restricted Subsidiary of the Company) and (ii) will not permit any person
(other than the Company or a Wholly Owned Restricted Subsidiary of the Company)
to own any Capital Stock of any Restricted Subsidiary of the Company other than
with respect to (A) the limited partnership interests of SPT owned by certain
employees of SPT on the Issue Date and (B) the general and limited partnership
interests of SP Europe, so long as the Company shall be a general partner and
own at least 51% of the combined general and limited partnership interests
thereof.
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SECTION 1016. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, transfer, disposition, purchase, exchange or lease of
assets, property or services) with, or for the benefit of, any Affiliate of the
Company (other than a Wholly Owned Restricted Subsidiary of the Company) or any
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act)
of 10% or more of the Company's Common Stock at any time outstanding
("Interested Persons"), except (i) on terms that are no less favorable to the
Company, or its Restricted Subsidiary, as the case may be, than those which
could have been obtained in a comparable transaction or transactions on an
arm's-length basis at such time from persons who are not Affiliates of the
Company or Interested Persons, (ii) with respect to a transaction or series of
transactions involving aggregate payments or value equal to or greater than
$10,000,000, (A) the Company has obtained a written opinion from a nationally
recognized investment banking firm stating that the terms of such transaction
or series of transactions are fair to the Company or its Restricted Subsidiary,
as the case may be, from a financial point of view or such transaction or
series of transactions shall have been approved by a majority of the
disinterested members of the Board of Directors of the Company and (B) the
Company shall have delivered an Officers' Certificate to the Trustee certifying
that such transaction or series of transactions comply with the preceding
clause (i), and (iii) with respect to any transaction or series of transactions
involving aggregate payments or value equal to or greater than $1,000,000 and
less than $10,000,000, the Company shall have complied with the condition set
forth in clause (ii)(B) above. This covenant will not restrict the Company
from (i) paying reasonable and customary regular fees to directors of the
Company who are not employees of the Company, (ii) making loans or advances to
employees and officers of the Company and its Restricted Subsidiaries for bona
fide business purposes of the Company in the ordinary course of business
consistent with past practice, (iii) the payment of dividends in respect of the
Company or any Restricted Subsidiary permitted under Section 1011 or (iv)
transactions provided for
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under agreements in existence on the date of this Indenture and listed on
Schedule A hereto.
SECTION 1017. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends, in
cash or otherwise, or make any other distributions on or in respect of its
Capital Stock or any other interest or participation in, or measured by, its
profits, (b) pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company, (c) make loans or advances to
the Company or any other Restricted Subsidiary of the Company (d) transfer any
of its properties or assets to the Company or any other Restricted Subsidiary
of the Company or (e) guarantee any Indebtedness of the Company or any other
Restricted Subsidiary of the Company, except for such encumbrances or
restrictions existing under or by reason of (i) any agreement or other
instrument of a person acquired by the Company or any Restricted Subsidiary of
the Company in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable to
any person, or the properties or assets of any person, other than the person,
or the property or assets of the person, so acquired, (ii) any encumbrance or
restriction in the Bank Credit Agreement or any other agreement as in effect on
the date of this Indenture and listed on Schedule B hereto and (iii) any
encumbrance or restriction pursuant to any agreement that extends, refinances,
renews or replaces any agreement described in clause (i) and (ii) above, which
is not materially more restrictive or less favorable to the Holders than those
existing under the agreement being extended, refinanced, renewed or replaced.
SECTION 1018. Limitation on Guarantees by Restricted
Subsidiaries.
(a) The Company will not permit any
Restricted Subsidiary, directly or indirectly, to assume, guarantee or in any
other manner become liable with respect to any
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Indebtedness of the Company or any Guarantor, unless such Restricted Subsidiary
is a Guarantor or simultaneously executes and delivers a supplemental indenture
providing for the guarantee of payment of the Securities by such Restricted
Subsidiary pursuant to the terms of Exhibit A hereto and such guarantee shall
be subordinated to the Guarantor Senior Indebtedness of such Restricted
Subsidiary in the manner and to the extent set forth in such Exhibit A;
provided, however, that in the case of any guarantee of any Guarantor with
respect to Senior Indebtedness, the guarantee of the payment of the Securities
by such Guarantor to be provided in accordance herewith shall be subordinated
to the guarantee with respect to such Senior Indebtedness in the same manner
and to the same extent as the Securities are subordinated to such Senior
Indebtedness. The supplemental indenture shall supplement this Indenture by,
among other things, creating an additional Article Fourteen applicable to such
Restricted Subsidiary and any other Guarantor in the form set forth in Exhibit
A hereto, and in connection with the execution and delivery of the supplemental
indenture, such Restricted Subsidiary shall execute and deliver to the Trustee
a Guarantee substantially in the form of Exhibit B hereto. Such Article
Fourteen shall not become effective until the provisions of Section 1403 have
been complied with. Each guarantee created pursuant to the provisions
described above is referred to as a "Guarantee," and the issuer of each such
Guarantee, so long as the Guarantee remains outstanding, is referred to as a
"Guarantor."
(b) Notwithstanding the foregoing, in
the event that a Guarantor is released from all obligations which pursuant to
the first sentence of Section 1018(a) above obligate it to become a Guarantor,
such Guarantor shall be released from all obligations under its Guarantee
(provided that the provisions of the first sentence of Section 1018(a) shall
apply anew in the event that such Guarantor subsequent to being released incurs
any obligations that pursuant to such sentence obligate it to become a
Guarantor). In addition, upon any sale or disposition (by merger or otherwise)
of any Guarantor by the Company or a Restricted Subsidiary of the Company to
any person that is not an Affiliate of the Company or any of its Restricted
Subsidiaries which is otherwise in compliance with the terms of this Indenture,
such Guarantor will be deemed to be released from all obligations
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under its Guarantee; provided, however, that each such Guarantor is sold or
disposed of in accordance with Section 1014; provided further that the
foregoing proviso shall not apply to the sale or disposition of a Guarantor in
a foreclosure to the extent that such proviso would be inconsistent with the
requirements of the Uniform Commercial Code.
SECTION 1019. Restriction on Transfer of Assets.
The Company will not sell, convey, transfer or otherwise
dispose of its assets or property to any of its Subsidiaries, except for
transactions pursuant to clause (ix), (xi) and (xii) of the definition of
"Permitted Investments" and sales, conveyances, transfers or other dispositions
(a) made in the ordinary course of business or (b) made to any Wholly Owned
Restricted Subsidiary, if such Wholly Owned Restricted Subsidiary (x)
simultaneously with such sale, conveyance, transfer or disposal executes and
delivers a supplemental indenture to this Indenture providing for the guarantee
of payment of the Securities by such Wholly Owned Restricted Subsidiary
pursuant to the terms of Exhibit A hereto and (y) waives, and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any rights against the Company or
any other Subsidiary as a result of any payment by such Wholly Owned Restricted
Subsidiary under its guarantee. Such a guarantee shall be unconditional
(except for a customary savings clause with respect to fraudulent conveyance or
fraudulent transfer laws) and shall be subordinated to the Guarantor Senior
Indebtedness of such Wholly Owned Restricted Subsidiary in the manner and to
the extent set forth in such Exhibit A.
SECTION 1020. Limitation on Certain Other Subordinated
Indebtedness.
The Company will not issue, directly or indirectly, any
Indebtedness which is subordinated or junior in ranking in any respect to
Senior Indebtedness unless such Indebtedness is expressly pari passu with or
subordinated in right of payment to the Securities.
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SECTION 1021. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1010 through 1012,
inclusive, and Sections 1015 through 1018, inclusive, if before or after the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities, by Act of such Holders, waive such compliance in
such instance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
The Securities may be redeemed, at the election of the
Company, as a whole or from time to time in part, at any time after , 1998,
subject to the conditions and at the Redemption Prices specified in the form of
Security, together with accrued and unpaid interest, if any, to the Redemption
Date.
In addition, upon the occurrence of a Change of Control, the
Securities will be redeemable, in whole or in part, at the option of the
Company, upon not less than 30 nor more than 60 days' prior notice to each
Holder of Notes to be redeemed, at a redemption price equal to the sum of (i)
the then outstanding principal amount thereof, plus (ii) accrued and unpaid
interest, if any, to the Redemption Date plus (iii) the Applicable Premium.
In addition, up to 30% of the aggregate principal amount of
the Securities outstanding on the Issue Date will be redeemable prior
to , 1996, at the option of the Company, within 45 days of the sale of
Capital Stock in a Public Equity Offering from the net proceeds of such sale at
a redemption price equal to % of the principal amount to be redeemed, together
with
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accrued and unpaid interest, if any, thereon to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities to be redeemed and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
not previously called for redemption, in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not then listed on a national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Securities; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securi-
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ties selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for
in Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding
Securities are to be redeemed, the identification
(and, in the case of a partial redemption, the
principal amounts) of the particular Securities to be
redeemed,
(4) that, on the Redemption Date, the
Redemption Price (together with accrued interest, if
any, to the Redemption Date payable as provided in
Section 1107) will become due and payable upon each
such Security, or the portion thereof, to be
redeemed, and that interest thereon will cease to
accrue on and after said date,
(5) the place or places where such
Securities are to be surrendered for payment of the
Redemption Price, and
(6) the relevant CUSIP number(s).
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
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SECTION 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money in same-day funds (or New York Clearing House funds if such
deposit is made prior to the applicable Redemption Date) sufficient to pay the
Redemption Price of, and accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (together with accrued
interest, if any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Securities.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires,
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due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal amount of the
Security so surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may, at its option by Board Resolution, at any
time, with respect to the Securities, elect to have either Section 1202 or
Section 1203 be applied to all Outstanding Securities upon compliance with the
conditions set forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and any Guarantor shall be deemed
to have been discharged from their obligations with respect to all Outstanding
Securities on the date the conditions set forth in Section 1204 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the then Outstanding Securities, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1205 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), and
Holders of the Securities and the Guarantees and any amounts deposited under
Section 1204 shall cease to be subject to any obligations to, or the rights of,
any holder of Senior Indebtedness or Guarantor Senior Indebtedness under
Article Thirteen,
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Article Fourteen or otherwise, except for the following which shall survive
until otherwise terminated or discharged hereunder: (A) the rights of Holders
of Outstanding Securities to receive, solely from the trust fund described in
Section 1204 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003 and any Guarantor's
obligations in respect thereof, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Twelve. Subject to
compliance with this Article Twelve, the Company may exercise its option under
this Section 1202 notwithstanding the prior exercise of its option under
Section 1203 with respect to the Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, the Company shall be released from its
obligations under any covenant contained in Section 801 and in Sections 1007
through 1020 with respect to the Outstanding Securities on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder and Holders of the Securities and the Guarantees and any amounts
deposited under Section 1204 shall cease to be subject to any obligations to,
or the rights of, any holder of Senior Indebtedness or Guarantor Senior
Indebtedness under Article Thirteen, Article Fourteen or otherwise. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities, the Company and any Guarantor may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a
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Default or an Event of Default under Sections 501(3), 501(4) and 501(5), but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of
Section 608 who shall agree to comply with the
provisions of this Article Twelve applicable to it)
as trust funds in trust for the purpose of making the
following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) cash in United States
dollars in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of
principal and interest in respect thereof in
accordance with their terms will provide, not later
than one day before the due date of any payment,
money in an amount, or (C) a combination thereof,
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, and which shall be
applied by the Trustee (or other qualifying trustee)
to pay and discharge, the principal of (and premium,
if any) and interest on the Outstanding Securities on
the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any)
or installment of interest; provided that the Trustee
shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government
Obligations to said payments with respect to the
Securities; and provided further that upon the
effectiveness of this Section 1204, the cash or U.S.
Government Obligations deposited shall not be subject
to the rights of the holders of Senior Indebtedness
pursuant to the provisions of Article Thirteen.
Prior to such a deposit, the Company may give the
Trustee, in accordance with Section 1103 hereof, a
notice of its
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election to redeem all of the Outstanding
Securities at a future date pursuant to Article
Eleven hereof, which notice shall be irrevocable.
Such irrevocable notice, if given, shall be given
effect in applying the foregoing. For this purpose,
"U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of
America for the timely payment of which its full
faith and credit is pledged or (y) obligations of a
person controlled or supervised by and acting as an
agency or instrumentality of the United States of
America the timely payment of which is
unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in
either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include
a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act), as custodian
with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such
custodian for the account of the holder of such
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 principal of or
interest on the U.S. Government Obligation evidenced
by such depository receipt;
(2) No Default or Event of Default with
respect to the Securities shall have occurred and be
continuing on the date of such deposit or, insofar as
Section 501(9) or 501(10) hereof are concerned, at
any time during the period ending on the 91st day
after the date of such deposit (it being understood
that this condition shall not be deemed satisfied
until the expiration of such period);
(3) Such defeasance or covenant
defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or
any other material agreement or instrument to which
the Company or any Guarantor is a party or by which
it is bound;
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(4) In the case of an election under
Section 1202, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been
published by, the Internal Revenue Service a ruling,
or (y) since date of the Indenture, there has been a
change in the applicable federal income tax law, in
either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the
Outstanding Securities will not recognize income,
gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to
federal income tax on the same amounts, in the same
manner and at the same times as would have been the
case if such defeasance had not occurred;
(5) Such defeasance or covenant
defeasance shall not cause the Trustee to have a
conflicting interest with respect to any Securities
of the Company or any Guarantor;
(6) In the case of an election under
Section 1203, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance
had not occurred;
(7) The Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that
(x) the trust funds will not be subject to any rights
of any holders of Senior Indebtedness of the Company,
including, without limitation, rights arising under
this Indenture, and (y) after the 91st day following
the deposit, the trust funds will not be subject to
the effect of any applicable Federal Bankruptcy Code;
(8) The Company shall have delivered to
the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions
precedent provided for relating to either the
defeasance under Section 1202 or the covenant
defeasance under Sec-
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tion 1203 (as the case may be) have been complied
with;
(9) The Company shall have delivered to
the Trustee an Officers' Certificate stating that the
deposit was not made by the Company with intent of
preferring the Holders or any Guarantor over the
other creditors of the Company or any Guarantor with
the intent of defeating, hindering or delaying or
defrauding creditors of the Company, any Guarantor or
others;
(10) If the Bank Credit Agreement is in
effect, the Company shall have delivered to the
Trustee any required consent of the lenders under the
Bank Credit Agreement to such defeasance or covenant
defeasance, as the case may be; and
(11) No event or condition shall exist
that would prevent the Company from making payments
of the principal of (and premium, if any) or interest
on the Securities on the date of such deposit or at
any time during the period ending on the 91st day
after the date of such deposit (it being understood
that this condition shall not be deemed satisfied
until the expiration of such period).
SECTION 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively
for purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
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law. Money and U.S. Government Obligations so held in trust are not subject to
Article Thirteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1204 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance, as applicable, in accordance with this Article.
SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1205 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Company and any Guarantor under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1202 or 1203, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1205; provided, however, that if the Company
makes any payment of principal of (or premium, if any) or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
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ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, for the
benefit of the holders, from time to time, of Senior Indebtedness that, to the
extent and in the manner hereinafter set forth in this Article, the
Indebtedness represented by the Securities and the payment of the principal of
(and premium, if any) and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment as provided in this
Article to the prior payment in full in cash, Cash Equivalents or other form of
payment acceptable to the holders of Senior Indebtedness of all existing and
future Senior Indebtedness of the Company, which includes, without limitation,
all obligations under the Bank Credit Agreement; provided, however, that the
Securities, the Indebtedness represented thereby and the payment of the
principal of (and premium, if any) and interest on the Securities in all
respects shall rank equal with all other existing and future Pari Passu
Indebtedness and senior to all future Subordinated Indebtedness or the Company.
This Article shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue
to hold, Senior Indebtedness, and such provisions are made for the benefit of
the holders of Senior Indebtedness, and such holders are made obligees
hereunder and they and/or each of them may enforce such provisions.
SECTION 1302. Payment Over of Proceeds upon Dissolution,
etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relating to the Company or its
assets, (b) any liquidation, dissolution or other winding-up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c)
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any assignment for the benefit of creditors or other marshalling of assets or
liabilities of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, then and in any such event
(1) the holders of Senior Indebtedness
shall be entitled to receive payment in full in cash,
Cash Equivalents or other form of payment acceptable
to the holders of Senior Indebtedness of all amounts
due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in
accordance with the instrument governing such Senior
Indebtedness, before the Holders of the Securities
are entitled to receive any payment or distribution
of any kind or character (other than any payment or
distribution in the form of equity securities or
subordinated securities of the Company or any
successor obligor with respect to the Senior
Indebtedness provided for by a plan of reorganization
or readjustment that, in the case of any such
subordinated securities, are (A) subordinated in
right of payment to all Senior Indebtedness that may
at the time be outstanding to substantially the same
extent as, or to a greater extent than, the
Securities are so subordinated as provided in this
Article and (B) have an Average Life to Stated
Maturity not less than or not prior to the Securities
(such equity securities or subordinated securities of
a person hereinafter being "Permitted Junior
Securities") or payments made pursuant to Article
Twelve) on account of the principal of (and premium,
if any) and interest on each and all of the
Securities; and
(2) in the event that, notwithstanding
the foregoing provisions of this Section, after an
event described in clause (a), (b) or (c), the
Trustee or any Holder of the Securities shall have
received any payment or distribution of assets of the
Company of any kind or character, whether in cash,
property or securities, in respect of the principal
of (and premium, if any) and interest on each and all
of the Securities before all Senior Indebtedness is
paid in full or payment thereof provided for in cash,
Cash Equivalents or other form of payment acceptable
to the holders of Senior Indebtedness, then and in
such event such payment or distribution (other than a
payment or distribution in the form of Permitted
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Junior Securities or payments made pursuant to
Article Twelve) shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or
other person making payment or distribution of assets
of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full in
cash, Cash Equivalents or other form of payment
acceptable to the holders of Senior Indebtedness,
after giving effect to any concurrent payment or
distribution to or for the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another person upon the terms and conditions
set forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of this
Section if the person formed by such consolidation or into which the Company is
merged or the person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in Article Eight.
SECTION 1303. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 1302 shall be
applicable, upon the occurrence of a Payment Default, then no payment or
distribution of any assets of the Company of any kind or character (other than
Permitted Junior Securities or payments made pursuant to Article Twelve) shall
be made by the Company or the Trustee (if notice of such Payment Default has
been received by the Trustee pursuant to Section 1309) or received by the
Holders on account of the principal of (and premium, if any) and interest on
each and all of the Securities or on account of the purchase or redemption or
other acquisition of Securities unless and until such Payment Default shall
have been cured or waived or shall have ceased to exist or such
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Senior Indebtedness shall have been discharged or paid in full in cash, Cash
Equivalents or other form of payment acceptable to the holders of Senior
Indebtedness, after which the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 1302 shall be
applicable, upon (1) the occurrence of a Non-payment Default and (2) receipt by
the Trustee from the representative of holders of Designated Senior
Indebtedness of written notice of such occurrence, then no payment or
distribution of any assets of the Company of any kind or character (other than
Permitted Junior Securities or payments made pursuant to Article Twelve) shall
be made by the Company on account of the principal of (and premium, if any) and
interest on each and all of the Securities or on account of the purchase or
redemption or other acquisition of Securities for a period ("Payment Blockage
Period") commencing on the date of receipt by the Trustee of such notice from
such representative unless and until (subject to any blockage of payments that
may then be in effect under paragraph (a) of this Section) (A) more than 179
days shall have elapsed since receipt of such written notice by the Company or
the Trustee (provided such Designated Senior Indebtedness as to which notice
was given shall not theretofore have been accelerated), (B) such Non-payment
Default shall have been cured or waived in writing or shall have ceased to
exist (provided that no other Payment Default or Non-payment Default has
occurred and is then continuing after giving effect to such cure or waiver),
(C) such Designated Senior Indebtedness shall have been discharged or paid in
full in cash, Cash Equivalents or other form of payment acceptable to the
holders of Designated Senior Indebtedness or (D) such Payment Blockage Period
shall have been terminated by written notice to the Company or the Trustee from
such representative initiating such Payment Blockage Period, after which, in
the case of clause (A), (B), (C) or (D), whichever was earlier, the Company
shall resume making any and all required payments in respect of the Securities,
including any missed payments. Notwithstanding any other provision of this
Agreement, only one Payment Blockage Period may be commenced within any
consecutive 360-day period, and no Non-payment Default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to
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the Designated Senior Indebtedness initiating such Payment Blockage Period
shall be, or can be made, the basis for the commencement of a subsequent
Payment Blockage Period 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. In no event will a Payment Blockage Period
extend beyond 179 days from the date of the receipt by the Trustee of the
notice and there must be at least a 181-consecutive-day period in any 360-day
period during which no Payment Blockage Period is in effect.
(c) In the event that, notwithstanding
the foregoing, the Trustee or the Holder of any Security shall have received a
payment prohibited by the foregoing provisions of this Section, then and in
such event such payment shall be paid over and delivered forthwith by the
Trustee (if the notice required by Section 1309 has been received by the
Trustee) or an amount equal to such payment or distribution shall be paid over
and delivered forthwith by such Holder to the agent under the Bank Credit
Agreement for the benefit of, and distribution to, the holders of Designated
Senior Indebtedness or, if the Bank Credit Agreement has been terminated, to
the Company; provided that, in the event any Holder has received notice that
such payment is prohibited by the foregoing provisions of this Section prior to
the receipt of such payment by such Holders, any such Holders shall hold such
payment in trust for the benefit of the holders of Designated Senior
Indebtedness.
SECTION 1304. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 1302 or under
the conditions described in Section 1303, from making payments at any time of
principal of (and premium, if any) or interest on the Securities.
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SECTION 1305. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full in cash, Cash Equivalents or
other form of payment acceptable to the holders of Senior Indebtedness of all
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments pursuant to
the provisions of this Article to the holders of Senior Indebtedness by Holders
of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Indebtedness, and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of
the Senior Indebtedness.
SECTION 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as between the Company and the Holders of
the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the Holders of Senior Indebtedness; or (c)
prevent the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of Senior
Indebtedness, in respect of cash, property or
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securities of the Company received upon exercise of any such remedy.
SECTION 1307. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1308. No Waiver of Subordination Provisions.
(a) No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without in any way limiting the
generality of paragraph (a) of this Section, 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 of the Securities, without incurring responsibility to
the Holders of the Securities and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
Holders of the Securities to the holders of Senior Indebtedness, do any one or
more of the following: (1) 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; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
person liable in any manner for the collection or payment of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against
the Company and any other person.
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SECTION 1309. Notice to Trustee.
(a) The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to Section 602
hereof, shall be entitled in all respects to assume that no such facts exist;
provided, however, that, if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium,
if any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within three Business Days prior to such date.
(b) Subject to Section 602 hereof, the
Trustee shall be entitled to rely on the delivery to it of a written notice by
a person representing himself to be a holder of Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts perti-
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nent to the rights of such person under this Article and, if such evidence is
not furnished, the Trustee may defer any payment to such person pending
judicial determination as to the right of such person to receive such payment.
SECTION 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to Section 602 hereof, and
the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of 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.
SECTION 1311. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 606.
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SECTION 1312. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1311 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1313. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
SECTION 1314. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of U.S. Government Obligations held in trust
under Article Twelve hereof by the Trustee (or other qualifying trustee) and
which were deposited in accordance with the terms of Article Twelve hereof and
not in violation of Section 1303 hereof for the payment of principal of (and
premium, if any) and interest on the Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Thirteen, and none of the holders shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness or
any other creditor of the Company.
SECTION 1315. Proof of Claim.
In the event of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such
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other obligor or their creditors, the Holders irrevocably authorize and empower
the agent under the Bank Credit Agreement, if the Bank Credit Agreement is then
in effect (but without imposing any obligation on, or any duty to such agent),
to file and prove all claims therefor in the name of the Holders (or otherwise,
as such agent may determine to be necessary or appropriate for the enforcement
of the provisions of this Article Thirteen) if the Trustee or the Holders do
not file a proper claim or proof of debt in the form required in any such
proceeding prior to 15 days before the expiration of the time to file such
claim or claims.
SECTION 1316. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article Thirteen or otherwise. With respect to the holders of
Senior Indebtedness, the Trustee undertakes to perform or to observe only such
of its covenants or obligations as are specifically set forth in this Article
Thirteen and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
This Indenture may be signed in any number of counterparts
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
131
<PAGE> 147
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
SPX CORPORATION
[SEAL] By
Title:
Attest:
Title:
THE BANK OF NEW YORK,
as Trustee
[SEAL] By
Title:
Attest:
Title:
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EXHIBIT A
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. Guarantee.
Subject to the provisions of this Article Fourteen, each
Guarantor hereby jointly and severally unconditionally guarantees to each
Holder of a Security Outstanding authenticated and delivered by the Trustee and
to the Trustee, irrespective of the validity and enforceability of this
Indenture, the Securities or the obligations of the Company or any other
Guarantors to the Holders or the Trustee hereunder or thereunder, that: (a) the
principal of, premium, if any, and interest on the Securities will be duly and
punctually paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted
by law) interest, if any, on the Securities and all other obligations of the
Company or the Guarantors to the Holders or the Trustee hereunder or thereunder
(including fees, expenses or other) and all other Guarantor Senior Subordinated
Note Obligations will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other Senior Subordinated
Note Obligations, the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. This Guarantee is a present and
continuing guarantee of payment and performance, and not of collectibility
only. Accordingly, failing payment when due of any amount so guaranteed, or
failing performance of any other obligation of the Company to the Holders under
this Indenture or the Securities, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Securities shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Securities to accelerate the obligations of the Guarantors hereunder
in the same manner and to the same extent as the obligations of the Company.
<PAGE> 149
Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular
Security, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each of the Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture and this Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders of Securities and the Trustee, on the other hand, (a) subject to this
Article Fourteen, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article Five
hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantors for the purpose of this Guarantee.
This Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any signif-
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icant part of the Company's assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Securities are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Securities, whether as a "voidable preference,"
"fraudulent transfer" or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Securities shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from
any nonpaying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Guarantee.
SECTION 1402. Execution and Delivery of Guarantee.
The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Security. Each of
the Guarantors hereby agrees that its Guarantee set forth in Section 1401 shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates any Security or at any time thereafter, such Guarantor's
Guarantee of such Security shall be valid nevertheless.
The delivery of any Guarantee to the Trustee as required by
Section 1018(a) shall constitute due delivery of such Guarantee on behalf of
the Guarantor to and for the benefit of all Holders of the Securities.
SECTION 1403. Additional Guarantors.
Any person may become a Guarantor by executing and delivering
to the Trustee (a) a supplemental indenture in form and substance satisfactory
to the Trustee,
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which subjects such person to the provisions of this Indenture as a Guarantor,
and (b) an Opinion of Counsel to the effect that such supplemental indenture
has been duly authorized and executed by such person and constitutes the legal,
valid, binding and enforceable obligation of such person (subject to such
customary exceptions concerning fraudulent conveyance laws, creditors' rights
and equitable principles as may be acceptable to the Trustee in its
discretion).
SECTION 1404. Guarantee Obligations Subordinated to
Guarantor Senior Indebtedness.
Each Guarantor covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, for the
benefit of the holders, from time to time, of Guarantor Senior Indebtedness
that, to the extent and in the manner hereinafter set forth in this Article,
the Indebtedness represented by the Guarantee and all payments pursuant to the
Guarantee made by or on behalf of such Guarantor are hereby expressly made
subordinate and subject in right of payment as provided in this Article to the
prior payment in full in cash, Cash Equivalents or other form of payment
acceptable to the holders of Guarantor Senior Indebtedness of all Guarantor
Senior Indebtedness of such Guarantor; provided, however, that the Guarantee,
the Indebtedness represented thereby and all payments pursuant to the Guarantee
made by or on behalf of such Guarantor in all respects shall rank prior to all
future Subordinated Indebtedness.
This Section and the following Sections 1405 through 1418 of
this Article shall constitute a continuing offer to all persons, who in
reliance upon such provisions, become holders of, or continue to hold Guarantor
Senior Indebtedness of any Guarantor and, to the extent set forth in Section
1406(b), holders of Designated Senior Indebtedness; and such provisions are
made for the benefit of the holders of Guarantor Senior Indebtedness of each
Guarantor and, to the extent set forth in Section 1406(b), holders of
Designated Senior Indebtedness; and such holders (to such extent) are made
obligees hereunder and they or each of them may enforce such provisions.
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SECTION 1405. Payment Over of Proceeds upon Dissolution,
etc., of a Guarantor.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relating to any Guarantor or its
assets, or (b) any liquidation, dissolution or other winding-up of any
Guarantor, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets or liabilities of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
then and in any such event
(1) the holders of Guarantor Senior Indebtedness of such
Guarantor shall be entitled to receive payment in full in cash, Cash
Equivalents or other form of payment acceptable to the holders of
Guarantor Senior Indebtedness of all amounts due on or in respect of
all Guarantor Senior Indebtedness, or provision shall be made for such
payment in accordance with the instrument governing such Guarantor
Senior Indebtedness, before the Holders of the Securities are entitled
to receive any payment or distribution of any kind or character by and
on behalf of such Guarantor (other than any payment or distribution in
the form of the Permitted Junior Securities of such Guarantor) on
account of the Guarantor Senior Subordinated Note Obligations; and
(2) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or any Holder of the Securities
shall have received any payment or distribution of assets of such
Guarantor of any kind or character, whether in cash, property or
securities, in respect of the Guarantor Senior Subordinated Note
Obligations before all Guarantor Senior Indebtedness is paid in full in
cash, Cash Equivalents or other form of payment acceptable to the
holders of Guarantor Senior Indebtedness or payment thereof is provided
for, then and in such event such payment or distribution (other than a
payment or distribution in the form of Permitted Junior Securities of
such Guarantor) shall be paid over or delivered forthwith to the
trustee in bankruptcy,
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receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of such Guarantor for
application to the payment of all Guarantor Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Guarantor Senior
Indebtedness in full in cash, Cash Equivalents or other form of
payment acceptable to the holders of Guarantor Senior Indebtedness,
after giving effect to any concurrent payment or distribution to or
for the holders of Guarantor Senior Indebtedness.
The consolidation of any Guarantor with, or the merger of any
Guarantor into, another person or the liquidation or dissolution of any
Guarantor following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another person upon the terms and
conditions set forth in Article Eight shall not be deemed a dissolution,
winding up, liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of such Guarantor for the
purposes of this Section if the person formed by such consolidation or into
which such Guarantor is merged or the person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in Article Eight.
SECTION 1406. Suspension of Guarantee Obligations When
Senior Indebtedness in Default.
(a) Unless Section 1405 shall be applicable, upon the
occurrence of a Payment Default, then no payment or distribution of any assets
of any Guarantor of any kind or character (other than Permitted Junior
Securities of such Guarantor) shall be made by such Guarantor or the Trustee
(if notice of such Payment Default has been received by the Trustee pursuant to
Section 1309) or received by the Holders on account of the Guarantor Senior
Subordinated Note Obligations or on account of the purchase or redemption or
other acquisition of Securities or the Guarantee of such Guarantor unless and
until such Payment Default shall have been cured or waived or shall have ceased
to exist or the Senior Indebtedness as to which such Payment Default relates
shall have been dis-
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charged or paid in full in cash, Cash Equivalents or other form of payment
acceptable to the holders of Senior Indebtedness, after which such Guarantor
shall resume making any and all required payments in respect of the Guarantee,
including any missed payments.
(b) Unless Section 1405 shall be applicable, during any
Payment Blockage Period in respect of the Securities, no payment or
distribution of any assets of any Guarantor of any kind or character (other
than Permitted Junior Securities of such Guarantor) shall be made by such
Guarantor on account of the Guarantor Senior Subordinated Note Obligations
or on account of the purchase or redemption or other acquisition of Securities
or the Guarantee of such Guarantor; provided, however, that the foregoing
prohibition shall not apply unless such Payment Blockage Period has been
instituted under Section 1303(b) by the representative of holders of Designated
Senior Indebtedness which also constitutes Guarantor Senior Indebtedness. Upon
the termination of any Payment Blockage Period, subject to Section 1405 and
Section 1406(a) (if applicable), such Guarantor shall resume making any and all
required payments in respect of its obligations under this Guarantee.
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Security shall have received a payment prohibited
by the foregoing provisions of this Section, then and in such event such
payment shall be paid over and delivered forthwith by the Trustee (if the
notice required by Section 1309 has been received by the Trustee) or an amount
equal to such payment or distribution shall be paid over and delivered
forthwith by such Holder to the agent under the Bank Credit Agreement for the
benefit of, and distribution to, the holders of Designated Senior Indebtedness
only to the extent, if at all, that such Designated Senior Indebtedness also
constitutes Guarantor Senior Indebtedness or, if the Bank Credit Agreement has
been terminated, to the Guarantor; provided that, in the event any Holder has
received notice that such payment is prohibited by the foregoing provisions of
this Section prior to the receipt of such payment by such Holders, any such
Holders shall hold such payment in trust for the benefit of the holders of
Guarantor Senior Indebtedness.
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SECTION 1407. Release of a Guarantor.
(a) Notwithstanding anything to the contrary contained in
this Indenture, in the event that a Guarantor is released from all obligations
which pursuant to Section 1018(a) obligate it to become a Guarantor, such
Guarantor shall be released from all obligations under its Guarantee (provided
that the provisions of Section 1018(a) shall apply anew in the event that such
Guarantor subsequent to being released incurs any obligations that pursuant to
Section 1018(a) obligate it to become a Guarantor).
(b) In addition, except in the case where the prohibition
on transfer in Article Eight is applicable, upon the sale or disposition of all
of the Capital Stock of a Guarantor by the Company or a Subsidiary, or upon the
consolidation or merger of a Guarantor with or into any person (in each case,
other than to the Company or an Affiliate of the Company), such Guarantor shall
be deemed automatically and unconditionally released and discharged from all
obligations under this Article without any further action required on the part
of the Trustee or any Holder; provided, however, that each such Guarantor is
sold or disposed of in accordance with Section 1014 hereof; and provided
further that the foregoing proviso shall not apply to the sale or disposition
of a Guarantor in a foreclosure to the extent that such proviso would be
inconsistent with the requirements of the Uniform Commercial Code.
(c) The Trustee shall deliver an appropriate instrument
evidencing the release of a Guarantor upon receipt of a request of the Company
accompanied by an Officers' Certificate certifying as to the compliance with
this Section 1407. Any Guarantor not so released or the entity surviving such
Guarantor, as applicable, shall remain or be liable under its Guarantee as
provided in this Article.
The Trustee shall execute any documents reasonably requested
by the Company or a Guarantor in order to evidence the release of such
Guarantor from its obligations under its Guarantee endorsed on the Securities
and under this Article.
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Except as set forth in Articles Eight and Ten and this Section
1407, nothing contained in the Indenture or in any of the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
SECTION 1408. Waiver of Subrogation.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company or any
Restricted Subsidiary that arise from the existence, payment, performance or
enforcement of such Guarantor's obligations under this Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in
any claim or remedy of any Holder of Securities against the Company or any
Restricted Subsidiary, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Company, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and the Securities shall not
have been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders
of the Securities and shall, subject to the provisions of this Article and to
Article Thirteen, forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Securities, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section is knowingly made in contemplation of such benefits.
This Section as applicable to any particular Guarantor may be
amended or modified, without the consent of the Holders, in a manner to be
consistent with the terms of any waiver of subrogation language set forth in
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any guarantee of such Guarantor issued under the Bank Credit Agreement at the
time that the Guarantee hereunder is first issued and shall thereafter be
required to be modified in the same manner as such guarantee under the Bank
Credit Agreement is thereafter amended or modified; provided that no such
amendment or modification to thereafter conform to the Bank Credit Agreement
shall be in a manner which is adverse to the Holders in any respect. No
modification or amendment referred to in the preceding sentence shall be
permitted if it would disadvantage the Holders relative to the Banks pursuant
to the Bank Credit Agreement other than by operation of the subordination
provisions of this Article.
SECTION 1409. Subrogation to Rights of Holders of Guarantor
Senior Indebtedness.
Subject to the payment in full of all Guarantor Senior
Indebtedness of the Guarantors and all Senior Indebtedness of the Company, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Guarantor Senior Indebtedness of the Guarantors to receive payments and
distributions of cash, property and securities of a Guarantor applicable to
such Guarantor Senior Indebtedness of the Guarantors until all amounts due
under the Guarantee of such Guarantor shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of Guarantor
Senior Indebtedness of any cash, property or securities of such Guarantor to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article, and no payments pursuant to the provisions of
this Article to the holders of Guarantor Senior Indebtedness of the Guarantors
by Holders of the Securities or the Trustee, shall, as among such Guarantor,
its creditors other than holders of Guarantor Senior Indebtedness, and the
Holders of the Securities, be deemed to be a payment or distribution by such
Guarantor to or on account of the Guarantor Senior Indebtedness.
SECTION 1410. Guarantor Provisions Solely to Define
Relative Rights.
The subordination provisions of this Article are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Securities on the one hand and the holders of Guarantor Senior
Indebt-
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edness of each Guarantor and, to the extent set forth in Section 1406, holders
of Designated Senior Indebtedness on the other hand. Nothing contained in this
Article (other than a release pursuant to Section 1407) or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as between
each Guarantor and the Holders of the Securities, the obligation of each
Guarantor, which is absolute and unconditional, to pay to the Holders of the
Securities its obligations under the Guarantee as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against such Guarantor of the Holders of the Securities and
creditors of such Guarantor other than the holders of Guarantor Senior
Indebtedness of such Guarantor; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable
law upon Default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article of the holders of Guarantor Senior
Indebtedness of the Guarantors hereunder and, to the extent set forth in
Section 1406, holders of Designated Senior Indebtedness in respect of cash,
property or securities of the Company received upon exercise of any such remedy.
The failure by any Guarantor to make a payment in respect of
its obligations under this Guarantee by reason of any provision of this Article
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
SECTION 1411. Trustee to Effectuate Subordination of
Guarantee Obligations.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1412. No Waiver of Guarantee Subordination
Provisions.
(a) No right of any present or future holder of any
Guarantor Senior Indebtedness of any Guarantor to enforce subordination as
herein provided shall at any
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time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or any
Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting in any way the generality of
subsection (a) of this Section, the holders of Guarantor Senior Indebtedness of
any Guarantor may, at any time and from time to time, without the consent of
or notice to the Trustee or the Holders of the Securities, without incurring
responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article Fourteen or the
obligations hereunder of the Holders of the Securities to the holders of
such Guarantor Senior Indebtedness, do any one or more of the following: (1)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor Senior Indebtedness relates or any
instrument evidencing the same or any agreement under which such Guarantor
Senior Indebtedness or such Senior Indebtedness is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor Senior Indebtedness relates; (3)
release any person liable in any manner for the collection or payment of such
Guarantor Senior Indebtedness or any Senior Indebtedness as to which such
Guarantor Senior Indebtedness relates; and (4) exercise or refrain from
exercising any rights against such Guarantor and any other person.
SECTION 1413. Guarantors to Give Notice to Trustee.
(a) The Company and each Guarantor shall give prompt
written notice to the Trustee of any fact known to such Guarantor which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to
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or by the Trustee in respect of the Securities, unless and until the Trustee
shall have received written notice thereof from the Company, such Guarantor or
a holder of Guarantor Senior Indebtedness or from any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to Section 602 hereof, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least three
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose under this Indenture (including, without
limitation, the payment of the principal of (and premium, if any) or interest
on any Security) then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
(b) Subject to Section 602 hereof, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Guarantor Senior Indebtedness (or a
trustee, fiduciary or agent therefor) to establish that such notice has been
given by a holder of Guarantor Senior Indebtedness (or a trustee, fiduciary or
agent therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a
holder of Guarantor Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Guarantor 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 and, if such
evidence is not furnished, the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
SECTION 1414. Reliance on Judicial Order or Certificate of
Liquidating Agent Regarding Dissolution, etc., of Guarantors.
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Upon any payment or distribution of assets of any Guarantor
referred to in this Article, the Trustee, subject to Section 602 hereof, and
the Holders of the Securities shall be entitled to rely conclusively upon any
order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of Guarantor Senior Indebtedness of such Guarantor
and other Indebtedness of such Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
SECTION 1415. Rights of Trustee as a Holder of Guarantor
Senior Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Guarantor Senior
Indebtedness of any Guarantor which may at any time be held by the Trustee, to
the same extent as any other holder of such Guarantor Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder. Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
SECTION 1416. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1415 shall not
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apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.
SECTION 1417. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
SECTION 1418. Proof of Claim.
In the event of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Guarantor or the property of any Guarantor
or its creditors, the Holders irrevocably authorize and empower the agent under
the Bank Credit Agreement, if the Bank Credit Agreement is then in effect and
the Senior Indebtedness incurred thereunder constitutes Guarantor Senior
Indebtedness (but without imposing any obligation on, or any duty to such
agent), to file and prove all claims therefor in the name of the Holders (or
otherwise, as such agent may determine to be necessary or appropriate for the
enforcement of the provisions of this Article Fourteen) if the Trustee or the
Holders do not file a proper claim or proof of debt in the form required in any
such proceeding prior to 15 days before the expiration of the time to file such
claim or claims.
SECTION 1419. Trustee Not Fiduciary for Holders of Guarantor
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other person cash, property
or securities to which any holders of Guarantor Senior Indebtedness shall be
entitled by virtue of this Article Fourteen or otherwise. With respect to the
holders of Guarantor Senior Indebtedness, the Trustee undertakes to perform or
to observe only such of its covenants or obligations as are specifically set
forth in this Article Fourteen and no implied covenants or obligations with
respect to holders of Guarantor
A-15
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Senior Indebtedness shall be read into this Indenture against the Trustee.
A-16
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EXHIBIT B
SENIOR SUBORDINATED GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees to the holder of a Security (as that term is defined in the
Indenture dated as of 1994 (the "Indenture") between SPX Corporation
(the "Company") and The Bank of New York, as trustee (the "Trustee"), and the
Trustee, the payments of principal of, premium, if any, and interest on such
Security in the amounts and at the time when due and interest on the overdue
principal, premium, if any, and interest, if any, of such Security, if lawful,
and the payment or performance of all other obligations of the Company under
the Indenture or the Securities, all in accordance with and subject to the
terms and limitations of such Security, Article Fourteen of the Indenture and
this Guarantee. This Guarantee shall become effective in accordance with
Article Fourteen of the Indenture, and its terms shall be evidenced therein.
The validity and enforceability of this Guarantee shall not be affected by the
fact that it is not affixed to any particular Security.
The obligations of the undersigned to the holders of
Securities and to the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article Fourteen of the Indenture, and reference is
hereby made to the Indenture for the precise terms of this Guarantee and all of
the other provisions of the Indenture to which this Guarantee relates. The
Indebtedness (as defined in the Indenture) evidenced by this Guarantee is, to
the extent and in the manner provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full of all Guarantor Senior
Indebtedness (as defined in the Indenture) in cash, Cash Equivalents or other
form of payment acceptable to the holders of Guarantor Senior Indebtedness, and
this Guarantee is issued subject to such provisions. Each holder of a Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
holder
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for such purpose; provided, however, that such subordination provisions shall
cease to affect amounts deposited in accordance with the defeasance provisions
of the Indenture upon the terms and conditions set forth therein.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
[NAME OF GUARANTOR]
By:
Name:
Title:
B-2
