EXHIBIT 4.1
AMPEX CORPORATION,
Issuer
12% Senior Notes
Due 2003
12% Senior Notes
Due 2003, Series B
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INDENTURE
Dated as of January 28, 1998
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IBJ XXXXXXXX BANK & TRUST COMPANY,
Trustee
634606.8
TABLE OF CONTENTS
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Article 1
Definitions and Incorporation by Reference
SECTION 1.01 Definitions...............................................1
SECTION 1.02 Other Definitions........................................16
SECTION 1.03 Incorporation by Reference of Trust
Indenture Act............................................17
SECTION 1.04 Rules of Construction....................................17
Article 2
The Securities
SECTION 2.01 Form and Dating..........................................18
SECTION 2.02 Execution and Authentication.............................19
SECTION 2.03 Registrar and Paying Agent...............................19
SECTION 2.04 Paying Agent To Hold Money in Trust......................20
SECTION 2.05 Securityholder Lists.....................................20
SECTION 2.06 Transfer and Exchange....................................21
SECTION 2.07 Restrictive Legends......................................21
SECTION 2.08 Book Entry Provisions for Global
Securities...............................................23
SECTION 2.09 Special Transfer Provisions..............................25
SECTION 2.10 Replacement Securities...................................27
SECTION 2.11 Outstanding Securities...................................27
SECTION 2.12 Temporary Securities.....................................28
SECTION 2.13 Cancellation.............................................28
SECTION 2.14 Defaulted Interest.......................................28
SECTION 2.15 CUSIP Numbers............................................29
Article 3
Redemption
SECTION 3.01 Notices to Trustee.......................................29
SECTION 3.02 Selection of Securities To Be Redeemed...................29
SECTION 3.03 Notice of Redemption.....................................30
SECTION 3.04 Effect of Notice of Redemption...........................31
SECTION 3.05 Deposit of Redemption Price..............................31
SECTION 3.06 Securities Redeemed in Part..............................31
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Article 4
Covenants
SECTION 4.01 Payment of Securities....................................31
SECTION 4.02 SEC Reports..............................................32
SECTION 4.03 Limitation on Indebtedness...............................32
SECTION 4.04 Limitation on Restricted Payments........................34
SECTION 4.05 Limitation on Asset Sales................................37
SECTION 4.06 Limitation on Liens......................................40
SECTION 4.07 Limitation on Dividends and Other
Payment Restrictions Affecting
Restricted Subsidiaries..................................41
SECTION 4.08 Limitation on Transactions with
Affiliates...............................................42
SECTION 4.09 Limitation on Designation of
Unrestricted Subsidiaries................................43
SECTION 4.10 Change of Control........................................44
SECTION 4.11 Compliance Certificate; Notice of
Defaults.................................................45
SECTION 4.12 Further Instruments and Acts.............................46
Article 5
Successor Corporation
SECTION 5.01 When Corporation May Merge or Transfer
Assets...................................................46
Article 6
Defaults and Remedies
SECTION 6.01 Events of Default........................................47
SECTION 6.02 Acceleration.............................................49
SECTION 6.03 Other Remedies...........................................50
SECTION 6.04 Waiver of Past Defaults..................................50
SECTION 6.05 Control by Majority......................................50
SECTION 6.06 Limitation on Suits......................................50
SECTION 6.07 Rights of Holders To Receive Payment.....................51
SECTION 6.08 Collection Suit by Trustee...............................51
SECTION 6.09 Trustee May File Proofs of Claim.........................51
SECTION 6.10 Priorities...............................................52
SECTION 6.11 Undertaking for Costs....................................52
SECTION 6.12 Waiver of Stay or Extension Laws.........................53
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Article 7
Trustee
SECTION 7.01 Duties of Trustee........................................53
SECTION 7.02 Rights of Trustee........................................54
SECTION 7.03 Individual Rights of Trustee.............................55
SECTION 7.04 Trustee's Disclaimer.....................................55
SECTION 7.05 Notice of Default........................................55
SECTION 7.06 Reports by Trustee to Holders............................56
SECTION 7.07 Compensation and Indemnity...............................56
SECTION 7.08 Replacement of Trustee...................................57
SECTION 7.09 Successor Trustee by Merger..............................58
SECTION 7.10 Eligibility; Disqualification............................58
SECTION 7.11 Preferential Collection of Claims
Against Corporation......................................58
Article 8
Satisfaction and Discharge of Indenture
SECTION 8.01 Discharge of Liability on Securities;
Defeasance...............................................58
SECTION 8.02 Conditions to Defeasance.................................60
SECTION 8.03 Application of Trust Money...............................61
SECTION 8.04 Repayment to Corporation.................................61
SECTION 8.05 Indemnity for Government Obligations.....................61
SECTION 8.06 Reinstatement............................................61
Article 9
Amendments, Supplements and Waivers
SECTION 9.01 Without Consent of Holders...............................62
SECTION 9.02 With Consent of Holders..................................62
SECTION 9.03 Compliance with Trust Indenture Act......................63
SECTION 9.04 Revocation and Effect of Consents........................63
SECTION 9.05 Notation on or Exchange of Securities....................64
SECTION 9.06 Trustee To Sign Amendments...............................64
SECTION 9.07 Payment for Consent......................................64
Article 10
Miscellaneous
SECTION 10.01 Trust Indenture Act Controls.............................65
SECTION 10.02 Notices..................................................65
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SECTION 10.03 Communication by Holders with Other
Holders..................................................66
SECTION 10.04 Certificate and Opinion as to Conditions
Precedent................................................66
SECTION 10.05 Statements Required in Certificate or
Opinion..................................................66
SECTION 10.06 When Treasury Securities Disregarded.....................67
SECTION 10.07 Rules by Trustee, Paying Agent and
Registrar................................................67
SECTION 10.08 Legal Holidays...........................................67
SECTION 10.09 Governing Law............................................67
SECTION 10.10 No Recourse Against Others...............................67
SECTION 10.11 Successors...............................................67
SECTION 10.12 Duplicate Originals......................................68
Signatures
EXHIBIT A Form of Initial Security
EXHIBIT B Form of Exchange Security
EXHIBIT C Form of Letter to be Delivered in
Connection with Transfers to
Non-QIB Accredited Investors
Note: This Table of Contents shall not, for any purpose, be
deemed to be a part of the Indenture.
634606.8
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1) ......................................... 7.10
(a)(2) ......................................... 7.10
(a)(3) ......................................... N.A.
(a)(4) ......................................... N.A.
(b) ......................................... 7.08; 7.10;
10.02
(c) ......................................... N.A.
311(a) ......................................... 7.11
(b) ......................................... 7.11
(c) ......................................... N.A.
312(a) ......................................... 2.05
(b) ......................................... 10.03
(c) ......................................... 10.03
313(a) ......................................... 7.06
(b)(1) ......................................... N.A.
(b)(2) ......................................... 7.06
(c) ......................................... 10.02
(d) ......................................... 7.06
314(a) ......................................... 4.02; 10.02
(b) ......................................... 10.03
(c)(1) ......................................... 10.04
(c)(2) ......................................... 10.04
(c)(3) ......................................... N.A.
(d) ......................................... N.A.
(e) ......................................... 10.05
(f) ......................................... N.A.
315(a) ......................................... 7.01
(b) ......................................... 7.05; 10.02
(c) ......................................... 7.01
(d) ......................................... 7.01
(e) ......................................... 6.11
316(a)(last sentence).................................... 10.06
(a)(1)(A) ......................................... 6.05
(a)(1)(B) ......................................... 6.04
(a)(2) ......................................... N.A.
(b) ......................................... 6.07
317(a)(1) ......................................... 6.08
(a)(2) ......................................... 6.09
(b) ......................................... 2.04
318(a) ......................................... 10.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be part of the Indenture.
634606.8
INDENTURE dated as of January 28, 1998, between AMPEX CORPORATION, a
Delaware corporation ("Corporation"), and IBJ XXXXXXXX BANK & TRUST COMPANY, a
New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Corporation's 12% Senior
Notes Due 2003 (the "Initial Securities") and the Holders of the 12% Senior
Notes due 2003, Series B to be issued in exchange for the Initial Securities
pursuant to the Registration Rights Agreement (the "Exchange Securities"):
Article 1
Definitions and Incorporation by Reference
SECTION 1.01 Definitions
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") of any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise.
"Asset Sale" means (i) any sale, lease, conveyance or other
disposition by the Corporation or any Restricted Subsidiary (other than to the
Corporation or a Restricted Subsidiary and other than directors' qualifying
shares) of any assets (including by way of a sale-and-leaseback) other than in
the ordinary course of business or (ii) the issuance or sale of Capital Stock
(other than Disqualified Stock) of any Restricted Subsidiary, in the case of
each of (i) and (ii), whether in a single transaction or a series of related
transactions, to any Person (other than to the Corporation or a Restricted
Subsidiary and other than directors' qualifying shares) for Net Proceeds in
excess of $1,000,000; provided, however, the following transactions shall not be
deemed Asset Sales:
(i) the Corporation or any Restricted Subsidiary may sell accounts
receivable (or participations therein) in connection with any accounts
receivables financing;
(ii) the Corporation or any Restricted Subsidiary may sell Capital
Stock or Indebtedness or other securities of an Unrestricted Subsidiary;
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(iii) the Corporation and any Restricted Subsidiary may (x) convey,
sell, lease, transfer, assign or otherwise dispose of assets pursuant to
and in accordance with the provisions of Section 5.01 of this Indenture and
(y) make Restricted Payments permitted by the provisions of Section 4.04 of
this Indenture;
(iv) the Corporation and any Restricted Subsidiary may create or
assume Liens (or permit any foreclosure thereon) securing Indebtedness to
the extent that such Lien does not violate the provisions of Section 4.06
of this Indenture; and
(v) the Corporation and any Restricted Subsidiary may consummate any
sale or series of related sales of assets or properties of the Corporation
and any Restricted Subsidiary having an aggregate fair market value for all
such sales of less than $1 million in any fiscal year.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the
sum of the products of numbers of years (rounded upwards to the nearest
month)from the date of determination to the dates of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with
respect to such Preferred Stock multiplied by the amount of such payment by (ii)
the sum of all such payments.
"Board of Directors" means the Board of Directors of the Corporation
or any duly authorized committee thereof.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means and includes any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including Preferred Stock, but excluding any debt securities convertible into
such equity.
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"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States,
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Rating Services or Xxxxx'x Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Rating Services or at least P-1 from Xxxxx'x
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
(or, with respect to foreign banks, similar instruments) maturing within one
year from the date of acquisition thereof issued by any bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia or any member of the European Economic Community or any U.S. branch of
a foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $200 million; (v) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (iv) above; and (vi) investments in money market funds which invest
substantially all their assets in securities of the types described in clauses
(i) through (v) above.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted Holders, is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act except that for purposes of this clause (i) such person or group
shall be deemed to have "beneficial ownership" of all shares that any such
person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total voting power of the outstanding Voting Stock of the
Corporation; or (ii) the sale, lease or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the assets of the
Corporation and its Restricted Subsidiaries to any person or group (as so
defined), excluding any such sale, lease or other transfer (x) to or among the
Corporation's Restricted Subsidiaries and (y) to any Person that is controlled
by the Permitted Holders.
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"Consolidated Coverage Ratio" means, with respect to any Person for
any period, the ratio of EBITDA of such Person for such period to the
Consolidated Interest Expense of such Person for such period provided, however,
that (A) if the Corporation or any Restricted Subsidiary has incurred any
Indebtedness since the beginning of such period and through the date of
determination of the Consolidated Coverage Ratio that remains outstanding or if
the transaction giving rise to the need to calculate Consolidated Coverage Ratio
is an incurrence of Indebtedness or both, the EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect on a pro forma
basis to (1) such Indebtedness as if such Indebtedness had been incurred on the
first day of such period (provided that if such Indebtedness is incurred under a
revolving credit facility or similar arrangement or under any predecessor
revolving credit or similar arrangement only that portion of such Indebtedness
that constitutes the one year projected average balance of such Indebtedness (as
determined in good faith by the Board of Directors of the Corporation) shall be
deemed outstanding for purposes of this calculation) and (2) the discharge of
any other Indebtedness repaid, repurchased defeased or otherwise discharged with
the proceeds of such new Indebtedness as if such discharge had occurred on the
first day of such period, (B) if since the beginning of such period and
Indebtedness of the Corporation or its Restricted Subsidiaries has been repaid,
repurchased, defeased or otherwise discharged (other than Indebtedness under a
revolving credit or similar arrangement unless such revolving credit
Indebtedness has been permanently repaid and the underlying commitment
terminated and not replaced), Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such
Indebtedness had been repaid, repurchased, defeased or otherwise discharged on
the first day of such period, (C) if since the beginning of such period the
Corporation or any of its Restricted Subsidiaries shall have made any Asset
Sale, EBITDA for such period shall be reduced by an amount equal to the EBITDA
(if positive) attributable to the assets which are the subject of such Asset
Sale for such period or increased by an amount equal to the EBITDA (if negative)
attributable thereto for such period, Consolidated Interest Expense for such
period (i) reduced by an amount equal to the Consolidated Interest Expense
attributable to any Indebtedness of the Corporation or any of its Restricted
Subsidiaries repaid, repurchased, defeased or otherwise discharged with respect
to the Corporation and its continuing Restricted Subsidiaries in connection with
such Asset Sale for such period (or if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest For such period directly
attributable to the Indebtedness of Restricted Subsidiary to the extent the
Corporation and its continuing Restricted Subsidiaries
634606.8
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are no longer liable for such Indebtedness after such sale) and (ii) increased
by interest income attributable to the assets which are the subject of such
Asset Sale for such period, (D) if since the beginning of such period the
Corporation or any of its Restricted Subsidiaries (by merger or otherwise) shall
have made an Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary as a result thereof) or an acquisition of assets
occurring in connection with a transaction causing a calculation to be made
hereunder which constitutes all or substantially of an operating unit of a
business, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the incurrence of
any Indebtedness) as if such Investment or acquisition occurred on the first day
of such period, and (E) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary of the Corporation or was merged
with or into the Corporation or any other Restricted Subsidiary since the
beginning of such period) shall have made any Asset Sale, Investment or
acquisition of assets that would have required an adjustment pursuant to clause
(C) or (D) above if made by the Corporation or a Restricted Subsidiary during
such period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset Sale,
Investment or acquisition had occurred on the first day of such period. For
purposes of this definition whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any Indebtedness
incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting officer of the
Corporation. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period.
"Consolidated GAAP Net Income" means, with respect to any period, the
net income (or loss) of the Corporation and its consolidated Subsidiaries for
such period, determined in accordance with GAAP as from time to time in effect.
"Consolidated Interest Expense" means, with respect to any period, the
sum of (i) the interest expense of the Corporation and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, including, without limitation, (a) amortization of debt discount, (b)
the net cash payments, if any, under interest rate contracts, (c) the interest
portion of any deferred payment obligation,
634606.8
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(d) accrued interest, and (e) all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers' acceptance financing or
similar facilities, plus (i) the interest component of the Capital Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the
Corporation during such period, of the Corporation and its Restricted
Subsidiaries, plus (iii) all cash dividends paid during such period by the
Corporation and its Restricted Subsidiaries with respect to any Disqualified
Stock, in each case as determined on a consolidated basis in accordance with
GAAP; provided, that Consolidated Interest Expense shall exclude the
amortization of fees and expenses related to the issuance of the Securities.
"Consolidated Net Income" means, with respect to any period, the
Consolidated GAAP Net Income (or loss) of the Corporation and its Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, adjusted to the extent included in calculating such net income (or
loss), by excluding, without duplication, (i) extraordinary gains and losses,
(ii) the portion of net income (or loss) of the Corporation and its Restricted
Subsidiaries allocable to interests in unconsolidated Persons or Unrestricted
Subsidiaries, except that the Corporation's equity in the net income of such
Person or Subsidiary shall be included in Consolidated Net Income to the extent
of the amount of dividends or distributions actually paid to the Corporation or
its Restricted Subsidiaries by such Person or Subsidiary during such period,
(iii) net income (or loss) of any Person combined with the Corporation or any of
its Restricted Subsidiaries on a "pooling of interests" basis attributable to
any period prior to the date of combination, (iv) net gain or loss in respect of
any sale, transfer or disposition of assets (including without limitation,
pursuant to sale and leaseback transactions) other than in the ordinary course
of business, (v) the net income of any Restricted Subsidiary to the extent that
the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income to the Corporation 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
regulation applicable to the Restricted Subsidiary or its stockholders (other
than pursuant to the Securities or this Indenture), and (vi) the non-recurring
cumulative effect of a change in accounting principles.
"Consolidated Total Assets" means, as of any date, the total assets of
the Corporation and its Restricted Subsidiaries as shown on the most recently
available consolidated balance sheet of the Corporation and its Restricted
Subsidiaries prepared in conformity with GAAP.
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"Currency Agreement Obligations" means the obligations of any Person
under any foreign exchange contract, currency swap agreement or other similar
agreement to protect such Person against fluctuations in currency values.
"Corporation" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depository" shall mean The Depository Trust Company, New York, New
York, or any successor thereto registered under the Securities Exchange Act or
other applicable statute or regulation.
"Disqualified Stock" means (a) any Preferred Stock of any Restricted
Subsidiary, and (b) any Capital Stock which by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable) or upon
the happening of any event (i) matures or is mandatorily redeemable pursuant to
a sinking fund obligation or otherwise, or (ii) is redeemable at the option of
the holder thereof (other than upon the occurrence of an "Asset Sale" or a
change of control of the Corporation in circumstances where the holders of the
Notes would have similar rights), in whole or in part, in each case on or prior
to the Stated Maturity of the Securities, including without limitation the
Noncumulative Redeemable Preferred Stock.
"EBITDA" means, with respect to any Person for any period, the sum of
Consolidated Net Income of such Person for such period plus the following to the
extent deducted in calculating such Consolidated Net Income: (a) provision for
taxes based on the net income or profits of such Person, (b) Consolidated
Interest Expense, (c) consolidated depreciation and amortization, calculated in
accordance with GAAP, (d) any other non-cash charges (excluding any non-cash
items that represent an accrual of or reserve for cash charges reasonably
expected to be disbursed in any subsequent period prior to the Stated Maturity
of the Notes) deducted in computing Consolidated Net Income, less, (e) non-cash
items increasing Consolidated Net Income (excluding any items which represent an
accrual for cash receipts or the reduction of required future cash disbursements
reasonably expected to be received or disbursed in a subsequent period prior to
the Stated Maturity of the Notes).
"Equity Offering" means any public or private sale of Capital Stock
(other than Disqualified Stock) of the Corporation
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other than public offerings with respect to the Corporation's common stock
registered on Form S-8.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Corporation or its
Restricted Subsidiaries in existence or incurred pursuant to any loan or other
agreement in effect on the Issue Date plus any premium or interest accrued
thereon.
"Foreign Subsidiary" means a Subsidiary of a Person not organized
under the laws of the United States or any political subdivision thereof and the
operations of which are located substantially outside the United States.
"GAAP" means generally accepted accounting principles in the United
States set forth in the Statements of Financial Accounting Standards and the
Interpretations, Accounting Principles Board Opinions and AICPA Accounting
Research Bulletins which are applicable as of December 31, 1997 except as
otherwise specified herein.
"Guarantee" means any obligation, contingent or otherwise, of any
Person guaranteeing any Indebtedness of any Person (including, without
limitation, obligations to purchase assets, securities or services, to
take-or-pay or to maintain financial statement conditions or arrangements or
agreements entered into for the purpose of assuring the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss in
respect thereof, in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements of negotiable instruments for
collection or deposit in the ordinary course of business, or contingent
obligations in connection with the sale or discount of accounts receivable and
similar paper. The term "Guarantee" used as a verb has a corresponding meaning.
The term "Guarantor" shall mean any Person Guaranteeing any obligation.
"Indebtedness" means, with respect to any Person, without duplication,
(i) the principal of and the premium (if any) on all indebtedness of such Person
for money borrowed or which is evidenced by a note, bond, debenture or similar
instrument for payment of which such Person is liable, (ii) all obligations of
such Person under any conditional sale, title retention or similar agreement in
respect of the deferred or unpaid purchase price of property or services
acquired by such Person, (iii) all Capital Lease Obligations of such Person,
(iv)
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all obligations of such Person in respect of letters of credit or bankers'
acceptance issued or created for the account of such Person, (v) all net
obligations of such Person under Interest Rate Agreement Obligations or Currency
Agreement Obligations of such Person, (vi) all liabilities of others of the kind
described in the preceding clauses (i), (ii) or (iii) secured by any Lien on any
property owned by such Person even though such Person has not assumed or become
liable for the payment of such liabilities; provided, however, the amount of
such Indebtedness for purposes of this definition shall be limited to the lesser
of the amount of Indebtedness secured by such Lien or the value of the property
subject to such Lien, (vii) all Disqualified Stock issued by such Person and all
Preferred Stock issued by a Restricted Subsidiary of such Person, and (viii) to
the extent not otherwise included, any Guarantee by such Person of any other
Person's Indebtedness or other obligations described in clauses (i) through
(vii) above. "Indebtedness" of the Corporation and the Restricted Subsidiaries
shall not include (i) trade payables incurred in the ordinary course of
business, and (ii) contingent obligations incurred in connection with the sale
or discount of accounts receivable and similar paper in the ordinary course of
business. The principal amount outstanding of any Indebtedness issued with
original issue discount is the accreted value of such Indebtedness and
Indebtedness shall not include any liability for federal, state, local or other
taxes.
"Initial Purchaser" means First Albany Corporation.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Rate Agreement Obligations" means, with respect to any
Person, the Obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement but excluding advances to customers and employees in the
ordinary course of business) to, capital contribution (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) to, or any purchase or acquisition of capital
stock, bonds, notes, debentures or other similar instruments issued by, such
Person
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9
and shall include the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary. For purposes of the definition of "Unrestricted Subsidiary" below
and the provisions of Section 4.09 of this Indenture, (i) "Investment" shall
include the fair market value of the assets (net of liabilities) of any
Restricted Subsidiary of the Corporation at the time that such Restricted
Subsidiary of the Corporation is designated an Unrestricted Subsidiary and shall
exclude the fair market value of the assets (net of liabilities) of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Restricted Subsidiary of the Corporation and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined by the
Board of Directors in good faith.
"Issue Date" means the date on which the Notes are first issued under
the Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in any asset and any filing of, or agreement to give, any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Maturity Date" means March 15, 2003.
"Net Available Cash" means, with respect to any Asset Sale by any
Person, the aggregate cash or Cash Equivalent proceeds received by such Person
(including any cash payments received by way of deferred payment pursuant to, or
monetization of, a note or installment receivable or otherwise, but only as and
when received) in connection with such Asset Sale, plus the amount of cash and
Cash Equivalents referred to in the provided, however clause of paragraph (a)
(ii) of Section 4.05 of this Indenture, if any, net of (i) the amount of any
Indebtedness (including Disqualified Stock or Preferred Stock of a Subsidiary)
which is required to be repaid by such Person or its Affiliates in connection
with such Asset Sale, plus (ii) all fees, commissions and other expenses
incurred (including without limitation, the fees and expenses of legal counsel
and investment banking, accounting, underwriting and brokerage fees and
expenses) by such Person in connection with such Asset Sale, (iii) provision for
taxes, including income taxes, attributable to the Asset Sale or attributable to
required prepayments or
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repayments of Indebtedness with the proceeds of such Asset Sale, (iv) any
amounts reasonably provided by the Corporation or any Restricted Subsidiary of
the Corporation as a reserve against any liabilities associated with such Asset
Sale, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, (v) any
dividends or distributions or other amounts payable to Persons holding a
beneficial interest in the assets sold or to holders of minority interests in a
Restricted Subsidiary or other entity as a result of such Asset Sale.
"Net Proceeds," with respect to any issuance or sale of Capital Stock,
means the proceeds, in cash, securities or property (with any securities or
property valued at fair market value), of the issuance or sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees and expenses incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result of such issuance or sale.
"Noncumulative Redeemable Preferred Stock" means the shares of the
Corporation's 8% Noncumulative Redeemable Preferred Stock outstanding on the
Issue Date, and any refinancing thereof after the Issue Date, provided, however,
that the aggregate liquidation value of any securities issued in any such
refinancing shall not exceed the liquidation value of the Noncumulative
Redeemable Preferred Stock outstanding on the Issue Date.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offering" shall have the meaning set forth in the Offering
Memorandum.
"Offering Memorandum" means the offering memorandum dated as of
January 23, 1998 relating to the Offering and sale of the Securities.
"Officer" means the Chairman of the Board, the President, the
Executive Vice President, any Senior Vice President, any Vice President, the
Treasurer or the Secretary of the Corporation.
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"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer or Assistant Secretary of the
Corporation.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Corporation or the Trustee.
"Permitted Holders" means collectively or individually (i) Xxxxxx X.
Xxxxxxx and (ii) his "associates" (as defined in Rule 12B-2 under the Exchange
Act, except that a person shall not be an "associate" for purposes of this
Indenture solely because such person comes within the definition of such term in
clause (a) of such Rule) and his Affiliates.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock corporation, limited liability corporation,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Preferred Stock" as applied to the Capital Stock of any Person means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security in connection with the transaction in
question.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth in Section 2.07.
"Purchase Money Obligation" means any Indebtedness secured by a Lien
on assets related to the business of the Corporation or the Restricted
Subsidiaries, and any additions and accessions thereto, which are purchased or
constructed by the Corporation or any Restricted Subsidiary at any time after
the Issue Date; provided that (i) any security agreement or conditional sales or
other title retention contract pursuant to which the Lien on such assets is
created (collectively a "Security Agreement") shall be entered into within 180
days after the purchase or substantial completion of the construction of such
assets and shall at all times be confined solely to the assets so purchased or
acquired, any additions and accessions thereto and any proceeds therefrom, (ii)
at no time shall the aggregate principal amount of the outstanding Indebtedness
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secured thereby be increased, except in connection with the purchase of
additions and accessions thereto and except in respect of fees and other
obligations in respect of such Indebtedness and (iii)(A) the aggregate
outstanding principal amount of Indebtedness secured thereby (determined on a
per asset basis in the case of any additions and accessions) shall not at the
time such Security Agreement is entered into exceed 100% of the purchase price
to the Corporation or any Restricted Subsidiary of the assets subject thereto or
(B) the Indebtedness secured thereby shall be with recourse solely to the assets
so purchased or acquired, any additions and accessions thereto and any proceeds
therefrom.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means the March 1st or September 1st immediately
preceding an interest payment date specified in the Securities.
"Registration Rights Agreement" means the Registration Rights
Agreement dated on or about the Issue Date between the Company and the Initial
Purchaser for the benefit of themselves and the Holders as the same may be
amended from time to time in accordance with the terms thereof.
"Restricted Investment" means an Investment by the Corporation or a
Restricted Subsidiary in any Subsidiary other than a Restricted Subsidiary.
"Restricted Payment" means (i) any dividend or other distribution
declared or paid on any Capital Stock of the Corporation (other than dividends
or distributions payable solely in Capital Stock (other than Disqualified Stock)
of the Corporation or dividends or distributions payable to the Corporation or
any Restricted Subsidiary and other than pro rata dividends or other
distributions made by a Restricted Subsidiary that is not a Wholly Owned
Subsidiary to minority stockholders (or owners of an equivalent interest in the
case of a Subsidiary that is not a corporation); (ii) any payment to purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the
Corporation; (iii) any voluntary or optional payment to purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated in right of payment to the Notes other than a purchase, redemption,
defeasance or other acquisition or retirement for value that is paid for with
the proceeds of Refinancing Indebtedness that is permitted under Section 4.03 of
this Indenture; or (iv) any Restricted Investment.
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"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided, however, that the Trustee shall be
entitled to receive, at its request, and conclusively rely on an Opinion of
Counsel with respect to whether any Security constitutes a Restricted Security.
"Restricted Subsidiary" means each direct or indirect Subsidiary of
the Corporation other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" means the Initial Securities and the Exchange Securities
issued under this Indenture.
"Senior Indebtedness" in the case of the Notes means Indebtedness that
is not by its terms expressly subordinate or junior in right of payment to any
other Indebtedness of the Corporation.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X
promulgated pursuant to the Securities Act.
"Subordinated Indebtedness" means Indebtedness (including, without
limitation, secured Indebtedness) of the Corporation which by its express terms
is subordinated or junior in right of payment to the Notes.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding voting power of the Voting Stock of which is owned or
controlled, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or by such Person and one or more other
Subsidiaries thereof, or (ii) any limited partnership of which such Person or
any Subsidiary of such Person is a general partner, or (iii) any other Person
(other than a corporation or limited partnership) in which such Person, or one
or more other Subsidiaries of such Person, or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has more than 50% of the
outstanding partnership or similar interests or has the power, by contract or
otherwise, to direct or cause the direction of the policies, management and
affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture.
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"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the Trustee
in its Corporate Trust Department or with respect to a particular matter, any
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable at the
issuer's option.
"Unrestricted Subsidiary" means Ampex Holdings Corporation and any
other Subsidiary of the Corporation designated as such pursuant to and in
compliance with the provisions of Section 4.09 of this Indenture. Any such
designation may be revoked by a Board Resolution of the Corporation delivered to
the Trustee, subject to the provisions of such covenant.
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding as to which the holders thereof are entitled under
ordinary circumstances (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees of such Person.
"Wholly Owned Subsidiary" means any Subsidiary with respect to which
all of the outstanding Voting Stock (other than directors' qualifying shares) of
which are owned, directly or indirectly, by the Corporation.
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SECTION 1.02 Other Definitions
Term Defined in Section
"Acquired Person".................................. 4.03
"Agent Members".................................... 2.08
"Bankruptcy Law"................................... 6.01
"Custodian"........................................ 6.01
"Designation"...................................... 4.09
"Event of Default"................................. 6.01
"Excess Proceeds".................................. 4.05
"Global Security".................................. 2.01
"Incur"............................................ 4.03
"Legal Holiday".................................... 10.08
"Offer"............................................ 4.05
"Offer Amount"..................................... 4.05
"Offer Period"..................................... 4.05
"Paying Agent"..................................... 2.03
"Permitted Payments"............................... 4.04
"Physical Securities".............................. 2.01
"Purchase Date".................................... 4.05
"Refinancing"...................................... 4.03
"Refinancing Indebtedness"......................... 4.03
"Registrar"........................................ 2.03
"Restricted Payment"............................... 4.04
"Revocation"....................................... 4.09
"Successor Corporation"............................ 5.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory
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provisions of the TIA, which are incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Corporation.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context otherwise
requires:
(1) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect on the Issue Date;
(2) "or" is not exclusive;
(3) "including" means including, without limitation; and
(4) words in the singular include the plural and words in the plural
include the singular.
Article 2
The Securities
SECTION 2.01 Form and Dating. The Initial Securities and the Trustee's
certificate of authentication relating thereto shall be substantially in the
form of Exhibit A hereto. The Exchange Securities and the Trustee's certificate
of authentication relating thereto shall be substantially in the form of Exhibit
B hereto. The Securities may have notations,
634606.8
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legends or endorsements required by law, stock exchange rule or depository rule
or usage. The Corporation shall approve the form of the Securities and any
notation, legend or endorsement on them. Each Security shall be dated the date
of its authentication and shall show the date of its authentication.
The additional terms and provisions contained in the forms of
Securities annexed hereto as Exhibits A and B, respectively, shall constitute,
and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Corporation and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more global Securities in registered form,
substantially in the form set forth in Exhibit A (the "Global Security"),
deposited with the Trustee, as custodian for the Depository, duly executed by
the Corporation and authenticated by the Trustee as hereinafter provided and
shall bear the legend set forth in Section 2.07 hereof. The aggregate principal
amount of the Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository.
Securities offered and sold in reliance on any other exemption from
registration under the Securities Act other than as described in the preceding
paragraph shall be issued, and Securities offered and sold in reliance on Rule
144A may be issued, in the form of certificated Securities in registered form,
in substantially the form set forth in Exhibit A (the "Physical Securities").
The Physical Securities are sometimes collectively herein referred to as the
"Physical Securities." Physical Securities may initially be registered in the
name of the Depository or a nominee of such Depository and be delivered to such
Depository. Beneficial owners of Physical Securities, however, may request
registration of such Physical Securities in their names or the names of their
nominees.
SECTION 2.02 Execution and Authentication. Two Officers shall sign the
Securities for the Corporation by manual or facsimile signature. The
Corporation's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
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A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and deliver Securities for original
issue from time to time in an aggregate principal amount of up to $50,000,000
upon a written order of the Corporation signed by two Officers or by an Officer
and an Assistant Treasurer or an Assistant Secretary of the Corporation. The
aggregate principal amount of Securities outstanding at any time may not exceed
that amount except as provided in Section 2.10.
The Securities shall be issuable only in registered form and only in
denominations of $1,000 principal amount and any integral multiple thereof.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Corporation to authenticate Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.03 Registrar and Paying Agent. The Corporation shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange ("Registrar") and an office or agency where
Securities may be presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Corporation may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Corporation shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Corporation shall
notify the Trustee of the name and address of any such agent. If the Corporation
fails to maintain a Registrar or Paying Agent. the Trustee shall act as such,
and shall be entitled to appropriate compensation in accordance with Section
7.07. The
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Corporation or any Subsidiary or Affiliate may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Corporation initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
SECTION 2.04 Paying Agent To Hold Money in Trust. On or prior to each
due date of the principal and interest on any Security, the Corporation shall
deposit with the Paying Agent a sum in immediately available funds sufficient to
pay such principal and interest when due. The Corporation shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Securityholders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest on the
Securities and shall notify the Trustee of any default by the Corporation in
making any such payment. If the Corporation or a Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Corporation at any time may require a Paying Agent to
pay all money held by it to the Trustee and to account for any funds disbursed
by it. Upon making such payment, the Paying Agent (other than the Corporation)
shall have no further liability for the money delivered to the Trustee.
SECTION 2.05 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Corporation shall furnish to the Trustee at least five Business
Days before each interest payment date and at such other times as the Trustees
may request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Securityholders.
SECTION 2.06 Transfer and Exchange. When a Security is presented to
the Registrar or a co-registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if duly authorized or
accompanied by a written instrument of transfer, by the Holder. The Registrar
may require the assurances set forth in Section 8-402 of the Uniform Commercial
Code that any indorsement is genuine and effective. When Securities are
presented to the Registrar or a co-registrar with a request to exchange them for
an equal principal amount of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Corporation shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-registrar's
request. The Corporation may
634606.8
20
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges. The Corporation shall not be required to make and the
Registrar need not register transfers or exchanges of Securities selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or for a period of 15 days before a
selection of Securities to be redeemed or 15 days before an interest payment
date.
Prior to the due presentation for registration of transfer of any
Security, the Corporation, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the
Corporation, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary. Furthermore, any Holder of a Global
Security shall, by acceptance of such Global Security, agree that transfers of
beneficial interests in such Global Security may be effected only through a
book-entry system maintained by the Depositary (or its agent) and that ownership
of a beneficial interest in the Global Security shall be required to be
reflected in a book entry.
SECTION 2.07 Restrictive Legends. (a) Each Global Security and
Physical Security that constitutes a Restricted Security shall bear the
following legend (the "Private Placement Legend") on the face thereof until the
third anniversary of the Issue Date, unless otherwise agreed by the Corporation
and the Holder thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY
MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACCEPTANCE HEREOF, THE HOLDER (1) REPRESENTS
(A) THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" AS
DEFINED IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) (AN INSTITUTIONAL ACCREDITED INVESTOR), (2) AGREES THAT IT WILL NOT, WITHIN
THE TIME PERIOD REFERRED TO IN RULE 144(K) UNDER THE SECURITIES ACT AS IN EFFECT
WITH RESPECT TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY,
EXCEPT (A) TO THE CORPORATION OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT
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PRIOR TO SUCH TRANSFER FURNISHES TO THE CORPORATION A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO RESTRICTIONS ON TRANSFER OF
THIS SECURITY, (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (G) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION) AND IN EACH
CASE, IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(b) Each Global Security shall also bear a legend on the face thereof
in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.07 OF THE INDENTURE.
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SECTION 2.08 Book Entry Provisions for Global Securities. This Section
2.08 shall apply only to the Global Security deposited with the Depository or
its custodian.
(1) So long as the Securities are eligible for book-entry settlement
with the Depository, or unless otherwise required by law, the Global Security
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, (ii) be delivered to the Trustee as custodian for such
Depository and (iii) bear legends as set forth in Section 2.07.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository may be treated by the Corporation, the
Trustee and any agent of the Corporation or the Trustee as the absolute owner of
the Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Corporation, the Trustee or any Agent of the
Corporation or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Security.
(2) Transfers of the Global Security shall be limited to transfers in
whole, but, subject to the immediately succeeding sentence, not in part, to the
Depository, its successors or their respective nominees. Interests of beneficial
owners in the Global Security may be transferred or exchanged for Physical
Securities in accordance with the rules and procedures of the Depository and the
provisions of Section 2.09 hereof. In addition, Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the Global Security if (i) the Depository notifies the Corporation that it is
unwilling or unable to continue as Depository for the Global Security and a
successor depositary is not appointed by the Corporation within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue Physical
Securities.
(3) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (2), the Registrar shall
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(if one or more Physical Securities are to be issued) reflect on its books and
records the date and a decrease in the principal amount of the Global Security
in an amount equal to the principal amount of the beneficial interest in the
Global Security to be transferred, and the Corporation shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
(4) In connection with the transfer of the beneficial interests in the
entire Global Security to beneficial owners pursuant to paragraph (2), the
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Corporation shall execute, and the Trustee shall,
authenticate and deliver to each beneficial owner identified by the Depository
in exchange for its beneficial interest in the Global Security, an equal
aggregate principal amount of Physical Securities of authorized denominations.
(5) Any Physical Security constituting a Restricted Security delivered
in exchange for a beneficial interest in the Global Security pursuant to
paragraph (2) or (3) shall, except as otherwise provided by paragraphs (1)(a)(x)
and (3) of Section 2.09 hereof, bear the Private Placement Legend.
(6) The owner of a beneficial interest in the Global Security may
grant proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Securities.
SECTION 2.09 Special Transfer Provisions. (1) Transfers to Non-QIB
Institutional Accredited Investors. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to any Institutional Accredited Investor which is not a
QIB:
(a) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after the third
anniversary of the Issue Date or (y) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB, the proposed
transferee has delivered to the Registrar a letter substantially in the
form of Exhibit C hereto; and
(b) if the proposed transferor is an Agent Member holding a beneficial
interest in the Global Security, upon
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receipt by the Registrar of (x) the certificate, if any, required by
paragraph (a) above and (y) written instructions given in accordance with
the Depository's and the Registrar's procedures,
whereupon (i) the Registrar shall reflect on its books and records the date and
if the transfer does not involve a transfer of outstanding Physical Securities)
a decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (ii) the Corporation shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities of like tenor and
amount.
(2) Transfers to QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a QIB:
(a) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Security stating, or has otherwise advised the Corporation and
the Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has
otherwise advised the Corporation and the Registrar in writing, that it is
purchasing the Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Corporation as it has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided
by Rule 144A; and
(b) if the proposed transferee is an Agent Member, and the Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the Global Security, upon receipt by the
Registrar of written instructions given in accordance with the Depository's
and the Security Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of the
Global Security in an amount equal to the principal amount of the
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Physical Securities to be transferred, and the Trustee shall cancel the
Physical Securities so transferred.
(3) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless (i) the requested transfer is after the
third anniversary of the Issue Date, or (ii) there is delivered to the Registrar
an Opinion of Counsel reasonably satisfactory to the Corporation and the Trustee
to the effect that neither such legend nor the related restrictions on transfer
are required in order to maintain compliance with the provisions of the
Securities Act.
(4) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.08 hereof or this Section
2.09. The Corporation shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
during the Registrar's normal business hours upon the giving of reasonable
written notice to the Registrar.
In connection with any transfer of the Securities, the Trustee, the
Registrar and the Corporation shall be entitled to receive, shall be under no
duty to inquire into, may conclusively presume the correctness of, and shall be
fully protected in relying upon the certificates, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the
Securities, or otherwise) received from any Holder and any transferee of any
Security regarding the validity, legality and due authorization of any such
transfer, the eligibility of the transferee to receive such Security and any
other facts and circumstances related to such transfer.
SECTION 2.10 Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Corporation shall
issue and the Trustee
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shall authenticate a replacement Security if the requirements of Section 8-405
of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Corporation, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Corporation and the Trustee to protect the Corporation, the
Trustee, the Paying Agent, the Registrar and any co-registrar from any loss
which any of them may suffer if a Security is replaced. The Corporation and the
Trustee may charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Corporation.
SECTION 2.11 Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it and those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding because
the Corporation or an Affiliate of the Corporation holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Corporation receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Corporation or a Subsidiary) holds
in trust, in accordance with this Indenture, on a redemption date or maturity
date money sufficient to pay all amounts payable on that date with respect to
the Securities (or portions thereof) and is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
If a Security is called for redemption or if it matures in less than a
year and if the Corporation has satisfied its obligation to pay the Security in
accordance with Article 8 of this Indenture, the Corporation and the Trustee
need not treat the Security as outstanding in determining whether Holders of the
required principal amount of Securities have concurred in any direction, waiver
or consent.
SECTION 2.12 Temporary Securities. Until definitive Securities are
ready for delivery, the Corporation may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the
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Corporation considers appropriate for temporary Securities. Without unreasonable
delay, the Corporation shall prepare and the Trustee shall authenticate
definitive Securities in exchange for temporary Securities.
SECTION 2.13 Cancellation. The Corporation at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee and no one else shall cancel and destroy
(subject to the record retention requirements of the Exchange Act) all
Securities surrendered for transfer, exchange, payment or cancellation and
deliver a certificate of such destruction to the Corporation unless the
Corporation directs the Trustee to deliver canceled Securities to the
Corporation. The Corporation may not issue new Securities to replace Securities
it has redeemed, paid or delivered to the Trustee for cancellation.
SECTION 2.14 Defaulted Interest. If the Corporation defaults in a
payment of interest on the Securities, it shall pay the defaulted interest
(plus, to the extent permitted by applicable law, interest on such defaulted
interest at the rate borne by the Securities plus 1%) in any lawful manner to
the persons who are Securityholders on a subsequent special record date, which
date shall be at least five business days prior to the special payment date. The
Corporation shall fix the special record date and special payment date, which
special record date shall be at least 10 days before the special payment date,
and the Corporation shall promptly mail to each Securityholder a notice that
states the special record date, the special payment date and the amount of
defaulted interest to be paid.
SECTION 2.15 CUSIP Numbers. The Corporation 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, however, 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.
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Article 3
Redemption
SECTION 3.01 Notices to Trustee. If the Corporation elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities Section of this Indenture
pursuant to which the redemption will occur.
The Corporation shall give the notices provided for in this Section at
least 60 days before the redemption date, unless the Trustee consents to a
shorter period. Such notice shall be accompanied by an Officers' Certificate and
an Opinion of Counsel from the Corporation that such redemption will comply with
the conditions contained herein.
If less than all the Securities are to be redeemed, the record date
relating to such redemption shall be selected by the Corporation and given by
notice to the Trustee, which record date shall be not less than 15 days after
the date of notice to the Trustee.
SECTION 3.02 Selection of Securities To Be Redeemed. If less than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by a method that complies with applicable legal
and securities exchange requirements, if any. The Trustee shall make the
selection from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal of Securities that
have denominations larger than $1,000, subject to the restriction that
Securities and portions of Securities the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Securities in denominations of $1,000 or
less may only be redeemed in whole. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Corporation promptly of the Securities
or portions of Securities to be redeemed.
SECTION 3.03 Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Securities, the Corporation shall mail a
notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
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The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if less than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to be
redeemed;
(6) that, unless the Corporation defaults in making such redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the redemption date;
(7) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed;
and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Corporation's request, the Trustee shall give the notice of
redemption in the Corporation's name and at the Corporation's expense. In such
event the Corporation shall provide the Trustee with the information required by
clauses (1) through (4) and (7).
SECTION 3.04 Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date. Failure to
give notice or any defect in the notice to any Holder shall not affect the
validity of the notice to any other Holder.
SECTION 3.05 Deposit of Redemption Price. On or prior to the
redemption date, the Corporation shall deposit with the Paying Agent (or if the
Corporation or a Subsidiary is the Paying
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Agent, shall segregate and hold in trust) money, in immediately available funds,
sufficient to pay the redemption price of and accrued interest on all Securities
to be redeemed on that date other than Securities or portions of Securities
called for redemption which have been delivered by the Corporation to the
Trustee for cancellation.
SECTION 3.06 Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder (at the
Corporation's expense) a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
Article 4
Covenants
SECTION 4.01 Payment of Securities. The Corporation shall promptly pay
the principal of and interest on the Securities not later than 11:00 a.m. New
York City time on the dates and in the manner provided in the Securities and in
this Indenture. Principal and interest (including any redemption price) shall be
considered paid on the date due if the Trustee or the Paying Agent (other than
the Corporation or a Subsidiary) holds on such date money in U.S. dollars
sufficient to pay all principal and interest (including any redemption price)
then due and the Trustee or the Paying Agent is not prohibited from paying such
money to the Holders on that date pursuant to the terms of this Indenture.
The Corporation shall pay interest on overdue principal (including any
redemption price) at the rate borne by the Securities plus 1% per annum, and it
shall pay interest on overdue installments of interest at the same rate to the
extent lawful.
SECTION 4.02 SEC Reports. The Corporation shall file with the Trustee
within 15 days after it files them with the SEC copies of the annual report and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which
the Corporation is required to file with the SEC pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934. In the event the Corporation is at any
time no longer subject to the reporting requirements of Section 13 or 15(d) of
the Securities and Exchange Act of 1934, it shall continue to file with the SEC
and provide the Trustee with reports containing substantially the same
information as would have been required to be filed with the SEC with respect to
financial statements, management's discussion
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and analysis and a discussion of significant changes in the business and
financial condition of the Corporation had the Corporation continued to have
been subject to such reporting requirements. In such event, such reports shall
be provided at the times the Corporation would have been required to provide
reports had it continued to have been subject to such reporting requirements.
Subsequent to qualification of the Indenture under the TIA, the Corporation also
shall comply with the other provisions of TIA ss 314(a).
SECTION 4.03 Limitation on Indebtedness. (a) The Corporation shall
not, and shall not permit any of its Restricted Subsidiaries to, issue, assume,
guarantee, incur or otherwise become liable for (collectively, "Incur") any
Indebtedness; provided, however, that: (i) the Corporation may Incur
Indebtedness which is expressly subordinate and junior in right of payment to
the Notes; and (ii) the Corporation and its Restricted Subsidiaries may Incur
Indebtedness if, on the date of Incurrence, the Consolidated Coverage Ratio
would be at least equal to 3.00 to 1.00.
(b) Notwithstanding the foregoing paragraph (a), the Corporation and
its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness of the Corporation represented by the
Securities;
(ii) Existing Indebtedness;
(iii) Indebtedness owed by any Restricted Subsidiary to the
Corporation or to another Restricted Subsidiary, or owed by the
Corporation to any Restricted Subsidiary; provided, however, that any
such Indebtedness shall be at all times held by a Person which is
either the Corporation or a Restricted Subsidiary of the Corporation;
(iv) Indebtedness of the Corporation or any Restricted Subsidiary
arising with respect to Interest Rate Agreement Obligations and
Currency Agreement Obligations Incurred for the purpose of fixing or
hedging interest rate risk or currency risk;
(v) Indebtedness represented by performance, completion,
guarantee, surety and similar bonds provided by the Corporation or any
Restricted Subsidiary in the ordinary course of business;
(vi) Indebtedness Incurred by the Corporation or any of its
Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit or other instruments issued in the
ordinary course of business, including without limitation letters of
credit in respect of workmen's compensation claims or self-insurance
or securing
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obligations of the Corporation or any Restricted Subsidiary under
operating leases; provided that upon drawing of such letters of credit
or other instrument such drawings are reimbursed within 30 days
following demand for reimbursements;
(vii) Indebtedness Incurred in connection with or given in
exchange for the renewal, extension, modification, amendment,
refunding, defeasance, refinancing or replacement (a "refinancing") of
any of the Securities or any Existing Indebtedness or any Indebtedness
issued after the Issue Date and not Incurred in violation of the
Indenture ("Refinancing Indebtedness"); provided, however, that (a)
the principal amount of such Refinancing Indebtedness shall not exceed
the principal amount (or accreted amount, if less) of the Indebtedness
so refinanced at the time outstanding (or obtainable under any
outstanding revolving credit or similar agreement) (plus the premiums
paid in connection therewith and the reasonable expenses incurred in
connection therewith); (b) with respect to Subordinated Indebtedness
being refinanced, the Stated Maturity of the Refinancing Indebtedness
shall be not earlier than the Stated Maturity of the Indebtedness
being refinanced, and such Refinancing Indebtedness shall have an
Average Life at the time such Refinancing Indebtedness is incurred
that is equal to or greater than the remaining Average Life of the
Indebtedness being Refinanced; (c) with respect to Subordinated
Indebtedness of the Corporation being refinanced, such Refinancing
Indebtedness shall rank no more senior than, and shall be at least as
subordinated in right of payment to the Securities as the Indebtedness
being refinanced; and (d) the obligor on such Refinancing Indebtedness
shall be the obligor on the Indebtedness being refinanced or the
Corporation or another Restricted Subsidiary;
(viii) Indebtedness of the Corporation or any Restricted
Subsidiary (a) representing Capital Lease Obligations and (b) in
respect of Purchase Money Obligations for property acquired in the
ordinary course of business, which taken together do not exceed $3
million in aggregate amount at any time outstanding;
(ix) Indebtedness of Foreign Subsidiaries of the Corporation not
to exceed a principal amount outstanding at any time of $5 million in
the aggregate for all Foreign Subsidiaries; and
(x) Guarantees by the Corporation or any Restricted Subsidiary of
Indebtedness of the Corporation or any Restricted Subsidiary that was
permitted to be Incurred pursuant to another provision of this
covenant;
(xi) Indebtedness of a Restricted Subsidiary engaged in providing
lease or similar financing to customers of the
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Corporation or its Restricted Subsidiaries, not exceeding 7.5% of
Consolidated Total Assets; and
(xii) Indebtedness of the Corporation or any Restricted
Subsidiary in addition to that described in clauses (i) through (xi )
above, and any refinancings of such Indebtedness, so long as the
aggregate principal amount of all such Indebtedness Incurred pursuant
to this clause (xii) does not exceed $15 million plus 75% of the
amount by which accounts receivable (net of reserves) of the
Corporation and its Restricted Subsidiaries (as shown in the
Corporation's most recent consolidated balance sheet) exceeds $15
million.
Any Indebtedness of a Person existing at the time such Person becomes
a Restricted Subsidiary (whether by merger, consolidation, acquisition or
otherwise; an "Acquired Person") shall be deemed to be Incurred by such
Restricted Subsidiary at the time it becomes a Restricted Subsidiary.
SECTION 4.04 Limitation on Restricted Payments. The Corporation will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
make any Restricted Payment (including any Restricted Investment), unless at the
time of and immediately after giving effect to the proposed Restricted Payment
(with the value of any such Restricted Payment, if other than cash, to be
determined reasonably and in good faith by the Board of Directors of the
Corporation), (i) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof, (ii) the Corporation could
Incur at least $1.00 of additional Indebtedness pursuant to the first paragraph
under Section 4.03 and (iii) the aggregate amount of all Restricted Payments
made after the Issue Date shall not exceed the sum of (a) an amount equal to 50%
of the Corporation's aggregate cumulative Consolidated Net Income accrued on a
cumulative basis during the period (treated as one accounting period) beginning
on January 1, 1998 and ending on the last day of the fiscal quarter of the
Corporation immediately preceding the date of such proposed Restricted Payment
(or, if such aggregate cumulative Consolidated Net Income for such period shall
be a deficit, minus 100% of such deficit), plus (b) (x) the aggregate amount of
all Net Proceeds received since the Issue Date by the Corporation from the
issuance and sale (other than to a Restricted Subsidiary) of Capital Stock
(other than Disqualified Stock), and (y) an amount equal to the amount (as shown
on the Corporation's most recent consolidated balance sheet, prepared in
accordance with GAAP) of all Indebtedness or Disqualified Stock that, after the
Issue Date, is converted into or exchanged for Capital Stock of the Corporation
(other than Disqualified Stock) (less the amount of any cash or property
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distributed by the Corporation upon such conversion or exchange), plus (c) the
amount of the net reduction in Investments by the Corporation or its Restricted
Subsidiaries in Unrestricted Subsidiaries resulting from (x) the payment of
dividends or the repayment in cash of the principal of loans or the net proceeds
from the sale of the Capital Stock or assets of such Unrestricted Subsidiaries
or other cash return on such Investment, in each case to the extent received by
the Corporation or any Restricted Subsidiary of the Corporation, (y) the release
or extinguishment of any guarantee of Indebtedness of any Unrestricted
Subsidiary, and (z) the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries of the Corporation (valued as provided in the definition of
"Investment"), such aggregate amount of the net reduction in Investments not to
exceed the amount of Restricted Investments previously made by the Corporation
or any Restricted Subsidiary of the Corporation in such Unrestricted
Subsidiaries, which amount was included in the calculation of the amount of
Restricted Payments. For purposes of the foregoing clause (c), the Corporation
shall be deemed to have made a Restricted Investment under the Indenture in an
amount equal to any cash contribution made or subscribed for by the Corporation
on or immediately prior to the Issue Date to one or more Unrestricted
Subsidiaries.
In addition, so long as there is no Default or Event of
Default continuing, the following payments and other actions shall be expressly
permitted notwithstanding anything contained in the covenant described above
(collectively, "Permitted Payments"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such declaration date such payment would
have been permitted under the Indenture and such payment shall be
deemed to have been paid on such date of declaration for purposes of
clause (iii) of the preceding paragraph;
(ii) the redemption, repurchase, retirement or other acquisition
of any Capital Stock or any Indebtedness of the Corporation that is
subordinated in right of payment to the Notes in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Restricted Subsidiary) of Capital Stock of the Corporation (other than
any Disqualified Stock);
(iii) any purchase or defeasance of Subordinated Indebtedness to
the extent required upon a Change of Control or Asset Sale (as defined
herein) by this Indenture or other agreement or instrument pursuant to
which such Subordinated Indebtedness was issued, but only if the
Corporation (x) in the case of a Change of Control, has complied with
its obligations under Section 4.10 or (y) in the case of an
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Asset Sale has applied the Net Available Cash from such Asset Sale in
accordance with the provisions of Section 4.05 of this Indenture;
(iv) any Restricted Investments made with the proceeds of the
substantially concurrent sale of Capital Stock (other than
Disqualified Stock);
(v) Restricted Investments in any Unrestricted Subsidiary engaged
in providing lease or similar financing to customers of the
Corporation and its Restricted Subsidiaries, in an amount such that
the sum of the aggregate amount of Restricted Investments made
pursuant to this clause (v) after the Issue Date and outstanding on
the date of determination does not exceed the greater of $5 million or
7.5% of Consolidated Total Assets;
(vi) the repurchase of Capital Stock of the Corporation
(including options, warrants or other rights to acquire such Capital
Stock) from directors, officers or employees (or their nominees) of
the Corporation or its Subsidiaries pursuant to the terms of an
employee benefit plan or employment agreement or similar arrangement;
provided that an aggregate amount of all such repurchases (net of
repayments or cancellations of indebtedness as a result of such
repurchases) shall not exceed $1 million in any fiscal year;
(vii) the redemption or repurchase of the Corporation's
Noncumulative Redeemable Preferred Stock at a price not to exceed 100%
of liquidation value; provided, however, that the aggregate amount of
all payments pursuant to this clause (vii) shall not exceed 100% of
cumulative Consolidated GAAP Net Income accrued during the period from
January 1, 1998 to the date of payment (treated as one accounting
period); and
(viii) Restricted Payments (other than a dividend or other
distribution declared on any Capital Stock of the Corporation or a
payment to purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Corporation) not to exceed $1 million in the
aggregate.
For purposes of clause (iii) of the first paragraph of this covenant,
Permitted Payments made pursuant to clauses (i), (vi) and (vii) of the
immediately preceding paragraph shall be included (without duplication) as
Restricted Payments made since the Issue Date.
SECTION 4.05 Limitation on Asset Sales. (a) The Corporation will not,
and will not permit any Restricted Subsidiary to, make any Asset Sale unless (i)
the Corporation or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to
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the fair market value of the assets or other property sold or disposed
of in the Asset Sale and (ii) at least 75% of such consideration
consists of either cash or Cash Equivalents, provided, however, that,
at the option of the Corporation, clause (ii) shall not be applicable
to Asset Sales (or portions of Asset Sales) to the extent the
Corporation shall apply cash and Cash Equivalents available from other
sources to make any required Asset Sale Offer as if 75% of such
consideration had consisted of cash and Cash Equivalents.
For the purposes of this covenant, the following will be deemed to be
cash: (x) the assumption by the transferee of Indebtedness of the Corporation or
Indebtedness of any Restricted Subsidiary of the Corporation and the release of
the Corporation or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Sale (in which case the Corporation
shall, without further action, be deemed to have applied such assumed
Indebtedness in accordance with clause (A) of the preceding paragraph) and (y)
securities received by the Corporation or any Restricted Subsidiary of the
Corporation from the transferee that are promptly (and in any event within 120
days) converted by the Corporation or such Restricted Subsidiary into cash.
(b) Within 365 days after any Asset Sale, the Corporation may elect to
apply the Net Available Cash from such Asset Sale to (i) permanently reduce or
redeem any Senior Debt of the Corporation or a Restricted Subsidiary and/or (ii)
make an Investment in, or acquire assets and properties that will be used in the
business of the Corporation and its Restricted Subsidiaries, and (iii) any
balance of such Net Available Cash exceeding $10 million and not applied or
invested as provided in clauses(i) and (ii) within 365 days of such Asset Sale,
will be deemed to constitute "Excess Proceeds" and shall be applied to make an
offer to purchase Securities to the holders of the Securities. Pending the final
application of any such Net Available Cash, the Corporation may temporarily
invest such Net Available Cash in cash or Cash Equivalents.
(c) In the event of an Asset Sale that requires the purchase of
Securities pursuant to clause (b)(iii) above, the Corporation will be required
to purchase Securities tendered pursuant to an offer by the Corporation for the
Securities (the "Offer") at a purchase price of 100% of their principal amount
plus accrued and unpaid interest, if any, to the purchase date in accordance
with the procedures (including prorating in the event of oversubscription) set
forth in Section 4.05(d) below. If the
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aggregate purchase price of the Securities tendered pursuant to the Offer is
less than the Net Available Cash allotted to the purchase of the Securities, the
Corporation will apply the remaining Net Available Cash to general corporate
purposes not prohibited by this Indenture. Upon the consummation of any Asset
Sale Offer, the amount of Excess Proceeds shall be deemed to be reset to zero.
(d) (1) Promptly, and in any event within 10 days after the Company
becomes obligated to make an offer, the Company shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Securities purchased by the
Company either in whole or in part (subject to the prorationing as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date of not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain such information
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an informed decision (which at a minimum will
include (1) the most recently filed Annual report on 10-K (including audited
consolidated financial statements) of the Company, the most recent subsequently
filed Quarterly Report on Form 10-Q and any Current Report on Form 8-K of the
Company filed subsequent to such Quarterly report, other than Current Reports
describing Asset Sale otherwise described in the offering materials (or
corresponding successor reports), (ii) a description of material developments in
the Company's business subsequent to the date of the latest of such reports, and
(iii) if material, appropriate pro forma financial information and all
instructions and materials necessary to tender Securities pursuant to the Offer,
together with the information contained in clause (3)
(2) Not later than the date upon which the written notice of an
Offer is delivered to the Trustee as provided below, the Company shall deliver
to the Trustee an Officers' Certificate as to (i) the amount of the Offer (the
"Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset
Sale pursuant to which such Offer is being made and (iii) the compliance of such
allocation with the provisions of Section 4.05(a). On such date, the Company
shall also irrevocably 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) in
cash or Cash Equivalents maturing on the day prior to the Purchase Date or on
the Purchase Date if funds are immediately available by open of business an
amount equal to the Offer Amount to be held for payment in accordance with the
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provisions of this Section. Upon the expiration of the period for which the
Offer remains open (the "Offer Period"), the Company shall deliver to the
Trustee or the Paying Agent for cancellation the Securities or portions thereof
which have been properly tendered to and are to be accepted by the Company. The
Trustee shall, on the Purchase date, mail or deliver payment to each tendering
Holder in the amount of the purchase price. In the event that the aggregate
purchase price of the Securities delivered by the Company to the Trustee is less
than the Offer Amount, the Trustee shall deliver the excess to the Company
immediately after the expiration of the Offer Period for application in
accordance with this Section.
(3) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed, to
the Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Xxxxxx is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000 or
integral multiples thereof, shall be purchased). 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.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for the purchase, the Company will also deliver an
Officers' Certificate stating that such Securities are to accepted by the
Company pursuant to and in accordance with the terms of this Section. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(e) The Corporation will comply, to the extent applicable, with the
requirements of Section 14 (e) of the Exchange Act and any other applicable
securities laws or regulations in connection with the repurchase of Securities
pursuant to this Indenture and will not be deemed to have breached its
obligations under this Indenture by virtue thereof.
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SECTION 4.06 Limitation on Liens. The Corporation will not, and will
not permit any Restricted Subsidiary to, directly or indirectly, Incur or suffer
to exist any Lien securing any Indebtedness (other than (1) Indebtedness
described in paragraphs (a) (ii) and (b) (ii), (vii)(to the extent the
Refinanced Indebtedness was secured by a Lien permitted by this Indenture), (xi)
and (xii) of the provisions of Section 4.03 of this Indenture; and (2)
Indebtedness of an Acquired Person existing at the date such Person became a
Restricted Subsidiary, and any refinancing thereof, provided however, that such
Lien is not applicable to any Person or the properties or assets of any Person,
other than the Acquired Person ) on any asset now owned or hereafter acquired,
unless the Notes are equally and ratably secured thereby.
SECTION 4.07 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Corporation will not, and will not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to (i) pay dividends or make any
other distributions to the Corporation or any other Restricted Subsidiary on its
Capital Stock, or pay any Indebtedness owed to the Corporation or any other
Restricted Subsidiary, make loans or advances to the Corporation or any other
Restricted Subsidiary or (iii) transfer any of its properties or assets to the
Corporation or any other Restricted Subsidiary, except for such encumbrances or
restrictions existing under or by reason of
(1) any agreement or instrument evidencing or governing any Existing
Indebtedness and any refinancings thereof;
(2) applicable law;
(3) any instrument governing Indebtedness or Capital Stock of an
Acquired Person acquired by the Corporation or any of its Restricted
Subsidiaries as in effect at the time of such acquisition or any
refinancing thereof; provided, however, that such restriction is not
applicable to any Person, or the properties or assets of any Person, other
than the Acquired Person;
(4) by reason of customary non-assignment provisions in leases entered
into in the ordinary course of business and consistent with past practices;
(5) Purchase Money Indebtedness for property acquired in the ordinary
course of business that only impose restrictions on the property so
acquired;
(6) an agreement for the sale or disposition of the Capital Stock or
assets of such Restricted Subsidiary;
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provided, however, that such restriction is only applicable to such
Restricted Subsidiary or assets, as applicable, and such sale or
disposition otherwise is permitted under Section 4.05 of this Indenture;
(7) Refinancing Indebtedness permitted under the Indenture; provided,
however, that the restrictions contained in the agreements governing such
Refinancing Indebtedness are not materially more restrictive in the
aggregate than those contained in the agreements governing the Indebtedness
being refinanced immediately prior to such refinancing;
(8) the Indenture and the Securities; arising or agreed to in the
ordinary course of business, not relating to any Indebtedness, and that do
not, individually or in the aggregate, detract from the value of property
or assets of the Corporation or any Restricted Subsidiary in any manner
material to the Corporation or any Restricted Subsidiary; or
(9) any instrument governing Indebtedness of a Foreign Subsidiary
which is permitted by the terms of the Indenture.
Nothing contained in this Section 4.07 shall prevent the Corporation
or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering
to exist any Liens otherwise permitted in the Section 4.06 covenant or (2)
restricting the sale or other disposition of property or assets of the
Corporation or any of its Restricted Subsidiaries that secure Indebtedness of
the Corporation or any of its Restricted Subsidiaries.
SECTION 4.08 Limitation on Transactions with Affiliates. The
Corporation will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, enter into any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of assets,
property or services) with any Affiliate of the Corporation (other than the
Corporation or a Restricted Subsidiary) unless (1) such transaction or series of
transactions is on terms that are not materially less favorable to the
Corporation or such Restricted Subsidiary, as the case may be, than would be
available in a comparable transaction in arm's-length dealings with an unrelated
third party, and (2) the Corporation delivers to the Trustee, with respect to
any transaction or series of related transactions involving aggregate payments
in excess of $5.0 million, an Officers' Certificate certifying that such
transaction or series of related transactions has been approved by a majority of
the members of the Board of Directors of the Corporation and evidenced by a
resolution of the Board of
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Directors set forth in an Officers' Certificate. Notwithstanding the foregoing,
this covenant will not apply to
(i) employment agreements, compensation or employee benefit
arrangements, stock options or stock purchase plans or agreements with or
for the benefit of any officer, director or employee of the Corporation
entered into in the ordinary course of business and approved by the Board
of Directors of the Corporation (including loans and stock repurchase
arrangements thereunder, customary fringe benefits and including
reimbursement or advancement of out of pocket expenses, loans to officers,
directors and employees in the ordinary course of business, reasonable fees
paid to directors who are not employees of the Corporation, and director's
and officer's liability insurance and indemnification arrangements);
(ii) any transaction entered into by or among the Corporation or one
of its Restricted Subsidiaries with one or more Restricted Subsidiaries of
the Corporation;
(iii) the sale, discount or other disposition of accounts receivable
or inventory to one or more Unrestricted Subsidiaries engaged in financing
receivables for the benefit of the Corporation or in providing lease or
similar financing to customers of the Corporation;
(iv) any Restricted Payment not prohibited by the provisions of
Section 4.04 of this Indenture;
(v) transactions permitted by, and complying with, the provisions of
Section 5.01 of this Indenture;
(vi) any sale or issuance of Capital Stock (other than Disqualified
Stock) of the Corporation;
(vii) the grant or performance of registration rights with respect to
securities of the Corporation; and
(viii) transactions in which the Corporation or any of its Restricted
Subsidiaries delivers to the Trustee an opinion from an independent
nationally recognized financial advisor stating that such transaction is
fair to the Corporation or such Restricted Subsidiary from a financial
point of view and meets the requirements of clauses (1) and (2) above.
SECTION 4.09 Limitation on Designation of Unrestricted Subsidiaries.
The Corporation will not designate any Subsidiary of the Corporation (other than
a newly created Subsidiary in which no Investment in excess of $1,000 has
previously been made) as an "Unrestricted Subsidiary" under the Indenture (a
"Designation") after the Issue Date unless:
(a) no Default shall have occurred and be continued at the time of or
after giving effect to such Designation; and
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(b) the Corporation would not be prohibited under the Indenture from
making an Investment at the time of Designation in an amount (the
"Designation Amount") equal to the fair market value of such Restricted
Subsidiary on such date.
In the event of any such Designation, the Corporation shall be deemed
to have made an Investment constituting a Restricted Payment pursuant to the
provisions of Section 4.04 of this Indenture for all purposes of the Indenture
in the Designation Amount. Neither the Corporation nor any Restricted Subsidiary
shall at any time (x) provide a Guarantee of or similar undertaking (including
any undertaking, agreement or instrument evidencing such Indebtedness) with
respect to any Indebtedness of an Unrestricted Subsidiary; provided that the
Corporation and its Restricted Subsidiaries may pledge Capital Stock or
Indebtedness of any Unrestricted Subsidiary on a nonrecourse basis such that the
pledgee has no claim whatsoever against the Corporation other than to obtain
such pledged property or (y) be directly or indirectly liable for any
Indebtedness of any Unrestricted Subsidiary, except to the extent permitted
under the provisions of Section 4.04 of this Indenture.
The Corporation may not revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), unless:
(a) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation shall be deemed to have
been incurred at such time and shall have been permitted to be incurred for
all purposes of the Indenture.
All Designations and Revocations must be evidenced by Board
Resolutions delivered to the Trustee certifying compliance with the foregoing
provisions.
SECTION 4.10 Change of Control. (a) Upon a Change of Control, each
Holder shall have the right to require that the Corporation repurchase such
Xxxxxx's Securities at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on a record date to receive interest
on the relevant interest payment date), in accordance with the terms
contemplated in Section 4.10(b).
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(b) Within 30 days following any Change of Control, the Corporation
shall mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder
has the right to require the Company to purchase such Holder's Securities at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of purchase (subject to the
right of Holders of record on a record date to receive interest on the relevant
interest payment date);
(2) the repurchase date (which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed); and
(3) the procedures determined by the Company, consistent with
this Section, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Note purchased will be required to
surrender the Security, with an appropriate form duly completed, to the Company
at the address specified in the notice at least three Business Days prior to the
purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than three Business Days prior to the
purchase date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Security which was delivered
for purchase by the Holder and a statement that such Xxxxxx is withdrawing his
election to have such Security purchased.
(d) On the purchase date, all Securities to be purchased by the
Company under this Section shall be delivered to the Trustee for cancellation,
and the Company shall pay the purchase price plus accrued and unpaid interest,
if any, to the Holders entitled thereto.
(e) The Corporation shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Corporation shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section by virtue thereof.
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SECTION 4.11 Compliance Certificate; Notice of Defaults. The
Corporation shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Corporation an Officers' Certificate stating that in the
course of the performance by the signers of such Certificate of their duties as
Officers of the Corporation they would normally have knowledge of any Default by
the Corporation and whether or not the signers know of any Default or Event of
Default that occurred during such period. If they do know of such a Default or
Event of Default, the certificate shall describe the Default or Event of
Default, its status and what action the Corporation is taking or proposes to
take with respect thereto.
Promptly after an Officer of the Corporation obtains knowledge of a
Default or Event of Default under this Indenture, the Corporation will deliver
to the Trustee an Officers' Certificate specifying such Default or Event of
Default and what action the Corporation is taking or proposes to take with
respect thereto.
SECTION 4.12 Further Instruments and Acts. The Corporation will, upon
request of the Trustee, execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Article 5
Successor Corporation
SECTION 5.01 When Corporation May Merge or Transfer Assets. The
Corporation shall not consolidate with or merge with or into, or convey or
transfer or lease in one transaction or a series of related transactions, all or
substantially all of its assets to, another Person unless:
(i) the resulting, surviving or transferee Person (the "Successor
Corporation") shall be a Person organized and existing under the laws of
the United States or any State thereof or the District of Columbia, and (if
not the Corporation) shall assume by supplemental indenture all the
obligations of the Corporation under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction, no Default
shall have happened and be continuing;
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(iii) immediately after giving effect to such transaction, the
Corporation would be able to incur an additional $1.00 of Indebtedness
pursuant to Section 4.03(a); and
(iv) the Corporation shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply
with this Indenture. The Trustee shall be entitled to rely conclusively
upon such Officers' Certificate and Opinion of Counsel.
The resulting, surviving or transferee Person shall be the successor
Corporation hereunder, and, in the case of any such transfer, the predecessor
Corporation shall be released from its obligations under this Indenture.
Notwithstanding the foregoing clauses (ii), (iii) and (iv), any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its property and assets to the Corporation.
Article 6
Defaults and Remedies
SECTION 6.01 Events of Default. An "Event of Default" occurs if:
(1) the Corporation defaults in the payment of interest on any
Security when the same becomes due and payable, and such default continues
for a period of 30 days;
(2) the Corporation (i) defaults in the payment of the principal of
any Security when the same becomes due and payable at its Stated Maturity,
upon redemption, upon declaration or otherwise; or (ii) fails to redeem or
purchase any securities when required pursuant to the Indenture or the
Securities;
(3) the Corporation fails to observe or perform any of its covenants
or agreements set forth in Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07,
4.08, 4.09, 4.10, 4.11 or 4.12 (other than the failure to purchase
Securities when required under Section 4.05 or Section 4.10) and 5.01
hereof and the Default continues for a period of 30 days after the notice
specified below;
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(4) the Corporation fails to observe or perform any of its covenants
or agreements set forth in the Securities or in this Indenture other than
the covenants and agreements specified in clause (1), (2) or (3) above and
the Default continues for a period of 60 days after the notice specified
below;
(5) a default or event of default (as such term is defined in the
instrument or agreement under which any Indebtedness is issued) occurs
under any instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness of the Corporation or any
Significant Subsidiary (other than Indebtedness of a Restricted Subsidiary
incurred pursuant to Section 4.03)and the holders of such Indebtedness have
accelerated such Indebtedness or any default occurs in the payment of the
principal amount of such Indebtedness at final maturity if the total of all
such Indebtedness which has been so accelerated and all such Indebtedness
which is overdue shall exceed $5,000,000 or its foreign currency equivalent
at the time, and there shall have been a failure to obtain rescission or
annulment of all such accelerations or to pay in full the amount in default
(together with any applicable interest) by the later of the expiration of
any applicable grace period or 10 days after the notice specified below;
(6) any judgment or decree for the payment of money in excess of $5.0
million or its foreign currency equivalent at the time is entered against
the Corporation or any Significant Subsidiary, remains outstanding for a
period of 60 days after the entry of such judgment or decree and is not
discharged, waived or the execution thereof stayed within 10 days after the
notice specified below;
(7) the Corporation or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to insolvency; or
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(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Corporation or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Corporation or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Corporation or
any Significant Subsidiary;
or any similar relief is granted under any foreign laws; and the order or decree
remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4), (5) or (6) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal amount of the
Securities notify the Corporation of the Default and the Corporation does not
cure such Default within the time specified after receipt of such notice. Such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Corporation shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (1), (2), (3), (4), (5) or (6) hereof, its status
and what action the Corporation is taking or proposes to take with respect
thereto.
SECTION 6.02 Acceleration. If an Event of Default (other than an Event
of Default specified in Section 6.01(7) or (8) with respect to the Corporation)
occurs and is continuing, the Trustee by notice to the Corporation, or the
Holders of at least 25% in principal amount of the Securities by notice to the
Corporation and the Trustee may declare the principal of and accrued interest on
all the Securities to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(7) or (8) with respect to the Corporation
occurs, the principal of and all accrued interest on the Securities shall
634606.8
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ipso facto become immediately due and payable without any declaration or other
action on the part of the Trustee or any Securityholders. The Holders of a
majority in principal amount of the Securities by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or Event of Default or impair any right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default or Event of Default and its consequences except (i) a Default
in the payment of the principal or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of the Securityholders affected. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any consequent right.
SECTION 6.05 Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject to
Section 7.01, that the Trustee determines is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to
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taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06 Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee reasonable security or indemnity against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, provision of
security or indemnity; and
(5) the Holders of a majority of principal amount of the Securities do
not give the Trustee a direction inconsistent with the request during such
60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07 Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee. If an Event of Default in
payment of interest or principal specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Corporation for the whole amount of principal
and interest remaining unpaid and the amounts provided for in Section 7.07.
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SECTION 6.09 Trustee May File Proofs of Claim. Subject to Section
6.05, the Trustee may file such proofs of claim and other papers or documents
and take other action including participating as a member (voting or otherwise)
of any committee of creditors appointed in the matter as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Corporation, its creditors
or its property and, unless prohibited by law or applicable regulations, may
vote on behalf of the Holders in any election of a trustee in bankruptcy or
other person performing similar functions, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and its counsel,
and any other amounts due the Trustee under Section 7.07.
SECTION 6.10 Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Corporation.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Corporation shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits
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and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
Securities.
SECTION 6.12 Waiver of Stay or Extension Laws. The Corporation (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Corporation
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law; and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
Article 7
Trustee
SECTION 7.01 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise its rights and powers and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use in the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others and no implied covenants or obligations shall be read into this
Indenture; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
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(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction in
writing received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Corporation.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) The Trustee shall not be deemed to know of any Default (other than
those under Sections 6.01 and 6.02) or other fact or circumstances upon the
occurrence of which it may be require to take action hereunder unless and until
one of its Trust Officers receives written notice of or has actual knowledge
thereof.
(h) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risks or liabilities is not reasonably assured
to it.
(i) Every provision of the Indenture relating to the conduct or
affecting the liability or affording protection to the Trustee shall be subject
to the provisions of this Section and to the applicable provisions of the TIA.
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SECTION 7.02 Rights of Trustee. (a) The Trustee may conclusively rely
on, and shall be protected from acting or refraining from acting based upon, any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, which shall comply with the
provisions of Section 11.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on the Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers provided that the Trustee's conduct does not constitute negligence or bad
faith.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Corporation or its Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the
Corporation's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Corporation in this Indenture, pursuant to
this Indenture or any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05 Notice of Default. If a Default or an Event of Default
occurs and is continuing and the Trustee has knowledge of such event, the
Trustee shall mail to each Securityholder notice of the Default or Event of
Default within 90 days after the occurrence thereof, unless such Default or
Event of Default has been cured. Except in the case of a Default in payment of
principal of or interest on any Security, the Trustee may withhold the notice if
and as long as a committee of
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54
its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
SECTION 7.06 Reports by Trustee to Holders. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee if required by TIA ss. 313(a) shall mail to each Securityholder a brief
report dated as of May 15 that complies with TIA ss. 313(a). The Trustee also
shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which the Securities are
listed. The Corporation agrees promptly to notify the Trustee whenever the
Securities become listed on any stock exchange and of any delisting thereof.
SECTION 7.07 Compensation and Indemnity. The Corporation shall pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Corporation shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents and counsel. The Corporation shall indemnify the Trustee
against any and all loss, liability or expense (including attorneys' fees)
incurred by it without negligence or bad faith on its part in connection with
the administration of this trust and the performance of its duties hereunder.
The Trustee shall promptly notify the Corporation promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Corporation
shall not relieve the Corporation of its obligations hereunder. The Corporation
shall defend the claim and the Trustee may have separate counsel and the
Corporation shall pay the fees and expenses of such counsel. The Corporation
need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee through negligence or bad faith.
To secure the Corporation's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of and
interest on particular Securities.
The Corporation's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of an Event of Default specified in subsection 6.01(6) or (7),
the expenses are
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intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign at any
time by so notifying the Corporation. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee in
writing and may appoint a successor Trustee. The Corporation may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring trustee) the Corporation shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Corporation. Immediately after
receiving such acceptance, the retiring Trustee shall transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07, the resignation or removal of the retiring Trustee shall then
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Corporation or
the Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
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SECTION 7.09 Successor Trustee by Xxxxxx. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the 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.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA ss. 310(a)(1). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b), including the optional provision permitted by the second sentence of
TIA ss. 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(2) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Corporation are outstanding if the requirement for such exclusions set forth
in TIA ss. 310(b)(1) are met.
SECTION 7.11 Preferential Collection of Claims Against Corporation.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
Article 8
Satisfaction and Discharge of Indenture
SECTION 8.01 Discharge of Liability on Securities; Defeasance. (a)
When (i) the Corporation delivers to the Trustee all outstanding Securities
(other than Securities replaced pursuant to Section 2.08) for cancellation or
(ii) all
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outstanding Securities have become due and payable and the Corporation
irrevocably deposits with the Trustee funds sufficient to pay at maturity or
upon redemption all outstanding Securities including interest thereon if any
(other than Securities replaced pursuant to Section 2.08), and if in either case
the Corporation pays all other sums payable hereunder by the Corporation, then
this Indenture shall, subject to Sections 8.01(c) and 8.06, cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Corporation accompanied by an Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Corporation.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Corporation at any
time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.02 through 4.12 and Section 5.01(a)(iii) and the operation of Sections
6.01(3), 6.01(4), 6.01(5), 6.01(6) and 6.01(7)(with respect to Significant
Subsidiaries) ("covenant defeasance option"). The Corporation may exercise its
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Corporation exercises its legal defeasance option, the
Securities may not be accelerated because of an Event of Default. If the
Corporation exercises its covenant defeasance option, the Securities, may not be
accelerated because of an Event of Default specified in Sections 6.01(3), (4),
(5), (6) and (7) (with respect to Significant Subsidiaries) or because of the
failure of the Corporation to comply with Section 5.01(a)(iii).
Before or after a deposit, the Corporation may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
Upon satisfaction of the conditions set forth herein and upon request
of the Corporation, the Trustee shall acknowledge in writing the discharge of
those obligations that the Corporation terminates.
(c) Notwithstanding clauses (a) and (b) above, the Corporation's
obligations in Sections 2.03, 2.04, 2.05, 2.08, 2.09, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter the
Corporation's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02 Conditions to Defeasance. The Corporation may exercise
its legal defeasance option or its covenant defeasance option only if:
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(1) the Corporation irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal and
interest on the Securities to maturity or redemption, as the case may be;
(2) the Corporation delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts (but not more than such amounts) as will be sufficient to pay
principal and interest when due on all the Securities to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123 day
period no Event of Default specified in Section 6.01(7) or (8) (without
giving effect to the period of time referred to therein) occurs which is
continuing at the end of the period;
(4) no Default or Event of Default has occurred and is continuing on
the date of such deposit and after giving effect thereto and is not
prohibited by Article 10;
(5) the Corporation delivers to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment Corporation under the Investment
Corporation Act of 1940;
(6) In the case of the legal defeasance option, the Corporation shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Corporation has received from, or there has been published by, the Internal
revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Security holders 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;
(7) in the case of the covenant defeasance option, the Corporation
shall have delivered to the Trustee an opinion of Counsel to the effect
that the Securityholders will not
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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; and
(8) the Corporation delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Securities as contemplated by this
Article 8 have been complied with.
SECTION 8.03 Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to Section
8.02. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities
so held in trust are not subject to Article 10.
SECTION 8.04 Repayment to Corporation. The Trustee and the Paying
Agent shall promptly turn over to the Corporation upon request any excess money
or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Corporation upon request any money held by them
for the payment of principal or interest that remains unclaimed for two years
and, thereafter, Securityholders entitled to the money must look to the
Corporation for payment as general creditors.
SECTION 8.05 Indemnity for Government Obligations. The Corporation
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06 Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Article 8
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Corporation's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Article 8 until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article 8;
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provided, however, that if the Corporation has made any payment of interest on
or principal of any Securities because of the reinstatement of its obligations,
the Corporation shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
Article 9
Amendments, Supplements and Waivers
SECTION 9.01 Without Consent of Holders. The Corporation and the
Trustee may amend or supplement this Indenture or the Securities without notice
to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to add to the covenants of the Corporation for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Corporation;
(5) to comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA; or
(6) to make any change that does not adversely affect the rights of
any Securityholder.
SECTION 9.02 With Consent of Holders. The Corporation may amend or
supplement this Indenture or the Securities without notice to any Securityholder
but with the written consent of the Holders of at least a majority in principal
amount of the Securities. The Holders of a majority in principal amount of the
Securities may waive any past default or compliance by the Corporation with any
provision of this Indenture or the
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Securities without notice to any Securityholder. However, without the consent of
each Securityholder affected, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security or
change the time whereby any Security may be redeemed in accordance with
Article 3;
(5) make any Security payable in money other than that stated in the
Security;
(6) make any change in Section 6.04 or 6.07 or this Section; or
(7) waive any Default in the payment of principal of or interest on
any Security.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment under this Section becomes effective, the
Corporation shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment otherwise
validly adopted under this Section 9.02.
SECTION 9.03 Compliance with Trust Indenture Act. Every amendment to
or supplement of this Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 9.04 Revocation and Effect of Consents. A consent to an
amendment, supplement or waiver by a Holder of a Security shall bind the Holder
and every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Xxxxxx's Security, even if notation of
the consent is not made on the Security. However, any such Holder or
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subsequent Holder may revoke the consent as to such Xxxxxx's Security or portion
of the Security if the Trustee receives the notice of revocation before the date
the amendment, supplement or waiver becomes effective. After an amendment,
supplement or waiver becomes effective in accordance with Section 9.01 or 9.02,
it shall bind every Securityholder.
The Corporation may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
SECTION 9.05 Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security regarding the changed terms and return
it to the Holder. Alternatively, if the Corporation or the Trustee so
determines, the Corporation in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06 Trustee To Sign Amendments. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver the Trustee shall
be entitled to receive an indemnity satisfactory to it and to receive, and
(subject to Section 7.01) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment, supplement or
waiver is authorized or permitted by this Indenture.
SECTION 9.07 Payment for Consent. Neither the Corporation nor any
Affiliate of the Corporation shall, directly or indirectly, pay or cause to be
paid any consideration, whether by way of interest, fee or otherwise, to any
Holder for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders that so
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63
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
Article 10
Miscellaneous
SECTION 10.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02 Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by
first-class mail addressed as follows:
if to the Corporation:
Ampex Corporation
000 Xxxxx Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
if to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
The Corporation or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
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SECTION 10.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Corporation, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
SECTION 10.04 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Corporation to the Trustee to take any action
or refrain from taking any action under this Indenture, the Corporation shall
furnish to the Trustee upon the Trustee's request:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(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 such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
SECTION 10.06 When Treasury Securities Disregarded. In determining
whether the Holders of the required principal
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amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Corporation or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Corporation shall be disregarded and deemed not to be outstanding, except that
for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which the Trustee
knows are so owned shall be so disregarded. Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 10.07 Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 10.08 Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 10.09 Governing Law. The laws of the State of New York shall
govern this Indenture and the Securities without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
SECTION 10.10 No Recourse Against Others. No director, officer,
employee or stockholder, as such, of the Corporation shall have any liability
for any obligations of the Corporation under the Securities or this Indenture or
for any claim based on, or in respect of or by reason of such obligations or
their creation. By accepting a Security, each Securityholder shall waive and
release all such liability.
SECTION 10.11 Successors. All agreements of the Corporation in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
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SECTION 10.12 Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
AMPEX CORPORATION,
By: /s/ XXXXX X. XXXXXXXX
--------------------------
Title: Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY,
Trustee
By: /s/ XXXXXXX XXXXXXX
-------------------------------
Title: Assistant Vice President
634606.8
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EXHIBIT A
[RESTRICTIVE LEGENDS IF APPLICABLE]
[OID LEGEND IF APPLICABLE]
CUSIP NO. ____
[FORM OF FACE OF SECURITY]
No.
$
AMPEX CORPORATION
12% Senior Note Due 2003
Ampex Corporation, a Delaware corporation, promises to pay to
___________________________________, or registered assigns, the principal sum of
________________________ Dollars on March 15, 2003.
Interest Payment Dates: March 15 and September 15, commencing
September 15, 1998.
Record Dates: March 1 and September 1, commencing September 1, 1998.
Additional provisions of this Security are set forth on the following
pages of this Security.
Dated:
AMPEX CORPORATION,
By:
President
Assistant Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
[SEAL]
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee, certifies that this is
one of the Securities referred to
in the Indenture.
by
-----------------------------------
Authorized Signatory
634606.8
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[FORM OF REVERSE SIDE OF SECURITY]
12% Senior Note Due 2003
1. Interest
Ampex Corporation, a Delaware corporation ("Corporation"), promises to
pay interest on the principal amount of this Security at the rate per annum
shown above. The Corporation will pay interest in cash to Holders of record at
the close of business on the March 1st and September 1st immediately preceding
the interest payment date on March 15 and September 15 of each year, commencing
September 15, 1998. Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
_____________ 15, 1998. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment
The Corporation will pay interest on the Securities (except defaulted
interest) to the persons who are registered holders of Securities at the close
of business on the March 1 or September 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Corporation will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Corporation may pay principal
and interest by check payable in such money. It may mail an interest check to a
Holder's registered address. At its option, the Corporation may pay principal
and interest by wire transfer to an account designated in writing by the Holder.
3. Paying Agent and Registrar
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York banking
corporation ("Trustee"), will act as Paying Agent and Registrar. The Corporation
may appoint and change any Paying Agent, Registrar or co-registrar without prior
notice to any holder, but will promptly notify the Trustee of any change. The
Corporation or any of its Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
634606.8
2
4. Indenture
The Corporation issued the Securities under an Indenture dated as of
January 28, 1998 ("Indenture"), between the Corporation and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code ss. 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
The Securities are subject to all such terms, and Securityholders are referred
to the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the Corporation
limited to $50,000,000 aggregate principal amount (subject to Section 2.10 of
the Indenture). The Indenture imposes certain limitations on the payment of
dividends and other distributions by the Corporation and certain of its
Subsidiaries, the sale or transfer of assets, the sale or transfer of shares of
stock of certain of its Subsidiaries, the incurrence of debt by the Corporation
and certain of its Subsidiaries and transactions with affiliates.
5. Optional Redemption
The Corporation may not redeem the Securities prior to March 15, 2000.
On or after March 15, 2000, the Corporation may redeem the Securities at any
time as a whole, or from time to time in part, at the following redemption
prices (expressed as percentages of principal amount) plus accrued interest to
the redemption date:
Optional
Redemption
Period Price
------ ----------
Through March 14, 2001 106%
March 15, 2001 through March 14, 2002 104%
March 15, 2002 through September 14,2002 102%
September 15, 2002 and thereafter 100%
In addition, at any time prior to March 15, 2000, the Company may, at
its option, redeem up to 35% of the aggregate principal amount of the Securities
originally issued with the net cash proceeds of one or more Equity Offerings (as
defined in the Indenture), at 112% of the aggregate principal amount of the
Securities being redeemed plus accrued and unpaid interest, if any, to the date
of redemption. Any such redemption with the
634606.8
3
proceeds for Equity Offering shall be made not more than 90 days after the date
of any such Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the redemption
price and accrued interest on all Securities to be redeemed on the redemption
date is deposited with the Paying Agent prior to the redemption date, on and
after such date interest ceases to accrue on such Securities or portions of
them. Securities in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or before an interest payment date. The
Indenture imposes certain restrictions on the transfer of the Securities in
violation of the Securities Act.
8. Persons Deemed Owners
The registered holder of this Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Corporation at its request unless an abandoned property law designates another
person. After any such payment, Holders entitled to the money must look only to
the Corporation (unless abandoned property law designates another person) and
not to the Trustee for payment.
634606.8
4
10. Satisfaction and Discharge of Indenture
On the terms and subject to certain conditions specified in the
Indenture, the Corporation will be discharged from the Indenture and the
Securities (other than certain specified provisions) or will be discharged from
certain covenants under the Indenture and the Securities upon deposit with the
Trustee of moneys or U.S. Government Obligations sufficient to pay at maturity
or upon redemption all Securities not previously delivered to the Trustee for
cancellation, including principal and accrued interest and all other sums then
payable by the Corporation under the Indenture.
11. Amendment, Supplement, Waiver
Subject to certain exceptions, (i) the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in principal amount outstanding of the Securities, and (ii) any past
default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount outstanding of the
Securities. Subject to certain exceptions, without the consent of any
Securityholder, the Corporation and the Trustee may amend or supplement the
Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
or to make any change that does not adversely affect the rights of any
Securityholder.
12. Defaults and Remedies
Each of the following is an Event of Default: default for 30 days in
payment of any interest on the Securities; default in payment of any principal
of the Securities when the same becomes due and payable at stated maturity, upon
redemption, upon declaration or otherwise; failure by the Corporation for 30
days after notice to the Corporation by the Trustee or to the Corporation and
the Trustee by the Holders of at least 25% aggregate principal amount of the
Securities to comply with certain covenants and agreements in the Indenture
relating to the payment of dividends and other distributions by the Corporation
and Subsidiaries, the sale or transfer of assets, the incurrence of debt by the
Corporation and Subsidiaries, transactions with affiliates and certain mergers,
consolidations and transfers of assets; failure by the Corporation for 60 days
after notice to the Corporation by the Trustee or to the Corporation and the
Trustee by the Holders of at least 25% aggregate in principal amount of the
Securities to comply with certain other covenants
634606.8
5
and agreements in the Indenture and the Securities; certain payment defaults
with respect to other indebtedness of the Corporation or certain of its
Subsidiaries, or other defaults resulting in the acceleration of such other
indebtedness, where the aggregate of such indebtedness exceeds $5,000,000; and
certain events of bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holders of at least 25% in principal amount of the Securities
may declare the principal of and accrued interest on all the Securities to be
due and payable immediately. Securityholders may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
13. Trustee Dealings with the Corporation
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Corporation or its affiliates and may otherwise deal with the
Corporation or its affiliates with the same rights it would have if it were not
Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Corporation and the Trustee shall not have any liability for any obligations of
the Corporation under the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
15. Authentication
This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent on the other side of this
Security.
634606.8
6
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Corporation has caused CUSIP numbers to
be printed on the Securities and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Security holders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Corporation will furnish to any Securityholder upon written
request and without charge to such Holder a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to: Ampex
Corporation, 000 Xxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, Attention of
Secretary.
18. Registration Rights
Pursuant to the Registration Rights Agreement described in the
Indenture, the Corporation will be obligated to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for the Corporation's 12% Senior Notes due 2003 (the "Exchange
Securities"), which will have been registered under the Securities Act, in like
principal amount and having terms identical in all material respects to the
Initial Securities. The Holders of the Initial notes shall be entitled to
receive certain additional interest in the event the exchange offer is not
consummated in accordance with the Registration Rights Agreement.
634606.8
7
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the third anniversary of the Issue Date, the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with such transfer and that such transfer is:
(Check One)
(1) _____ to the Corporation or a subsidiary thereof; or
(2) _____ to a "qualified institutional buyer" in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
(3) _____ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form of which
letter can be obtained from the Trustee); or
(4) _____ outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933, as
amended; or
(5) _____ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(6) _____ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) _____ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
Registered Holder thereof, provided, that if box (3), (4), (5) or (7) is
checked, the Corporation or the Trustee may require, prior to registering any
such transfer of the Notes, in its sole discretion, such written legal opinions,
certifications (including an investment letter in the case of box (3) or (4),
and other information as the Trustee,
634606.8
8
Registrar or the Corporation has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, as
amended.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any
person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in the
Indenture shall have been satisfied.
(Sign exactly as name appears on
the other side of this Security)
Signature
Guarantee:
-----------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date:
------------ ------------------------------------
NOTICE: To be executed by an
executive officer
634606.8
9
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Corporation pursuant to
Section 4.05 or 4.10 of the Indenture, check the Box: { }
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.05 or 4.10 of the Indenture, state the amount:
$-------------
Date: Your Signature:
------------------ --------------------------
(Sign exactly as your name appears
on the other side of this Note)
By:
--------------------------------
NOTICE: To be signed by an
executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a participant
in the Securities Transfer Agent Medallion Program ("STAMP") or similar program.
634606.8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-------------------------------------------------------
(insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Corporation.
The agent may substitute another to act for him.
Date: Signature(s):
------------------
---------------------------
Sign exactly as your name
appears on the other side
of this Security
Signature Guarantee:
------------------
634606.8
EXHIBIT B
[RESTRICTIVE LEGENDS IF APPLICABLE]
[OID LEGEND IF APPLICABLE]
CUSIP NO. ____
[FORM OF FACE OF SECURITY]
No.
$
AMPEX CORPORATION
12% Senior Note Due 2003, Series B
Ampex Corporation, a Delaware corporation, promises to pay to
_______________________________, or registered assigns, the principal sum of
_____________________ Dollars on March 15, 2003.
Interest Payment Dates: March 15 and September 15, commencing
September 1, 1998.
Record Dates: March 1 and September 1, commencing September 1, 1998.
Additional provisions of this Security are set forth on the following
pages of this Security.
Dated:
AMPEX CORPORATION,
By:
President
Assistant Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated:
[SEAL]
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee, certifies that this is
one of the Securities referred to
in the Indenture.
by
-----------------------------------
Authorized Signatory
634606.8
[FORM OF REVERSE SIDE OF SECURITY]
12% Senior Note Due 2003, Series B
1. Interest
Ampex Corporation, a Delaware corporation ("Corporation"), promises to
pay interest on the principal amount of this Security at the rate per annum
shown above. The Corporation will pay interest in cash to Holders of record at
the close of business on the March 1st and September 1st immediately preceding
the interest payment date on March 15 and September 15 of each year, commencing
September 15, 1998. Interest on the Securities will accrue from the last
interest payment date on which interest was paid on the security surrendered in
exchange hereof, or if no interest has been paid on such security, from the date
interest begins to accrue on such security. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment
The Corporation will pay interest on the Securities (except defaulted
interest) to the persons who are registered holders of Securities at the close
of business on the March 1 or September 1 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Corporation will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Corporation may pay principal
and interest by check payable in such money. It may mail an interest check to a
Holder's registered address. At its option, it may pay principal and interest by
wire transfer to an account designated in writing by the Holder.
3. Paying Agent and Registrar
Initially, IBJ Xxxxxxxx Bank & Trust Company, a New York banking
corporation ("Trustee"), will act as Paying Agent and Registrar. The Corporation
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Corporation or any of its Subsidiaries may act as Paying Agent,
Registrar or co-registrar.
634606.8
2
4. Indenture
The Corporation issued the Securities under an Indenture dated as of
January 28, 1998 ("Indenture"), between the Corporation and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code ss. 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
The Securities are subject to all such terms, and Securityholders are referred
to the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the Corporation
limited to $50,000,000 aggregate principal amount (subject to Section 2.10 of
the Indenture). The Indenture imposes certain limitations on the payment of
dividends and other distributions by the Corporation and certain of its
Subsidiaries, the sale or transfer of assets, the sale or transfer of shares of
stock of certain of its Subsidiaries, the incurrence of debt by the Corporation
and certain of its Subsidiaries and transactions with affiliates.
5. Optional Redemption
The Corporation may not redeem the Securities prior to March 15, 2000.
On or after March 15, 2000, the Corporation may redeem the Securities at any
time as a whole, or from time to time in part, at the following redemption
prices (expressed as percentages of principal amount) plus accrued interest to
the redemption date:
Optional
Redemption
Period Price
------ ----------
Through March 14, 2001 106%
March 15, 2001 through March 14, 2002 104%
March 15, 2002 through September 14,2002 102%
September 15, 2002 and thereafter 100%
In addition, at any time prior to March 15, 2000, the Company may, at
its option, redeem up to 35% of the aggregate principal amount of the Securities
originally issued with the net cash proceeds of one or more Equity Offerings (as
defined in the Indenture), at 112% of the aggregate principal amount of the
Securities being redeemed plus accrued and unpaid interest, if any, to the date
of redemption. Any such redemption with the proceeds for Equity Offering shall
be made not more than 90 days after the date of any such Equity Offering.
634606.8
3
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the redemption
price and accrued interest on all Securities to be redeemed on the redemption
date is deposited with the Paying Agent prior to the redemption date, on and
after such date interest ceases to accrue on such Securities or portions of
them. Securities in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1.000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or before an interest payment date. The
Indenture imposes certain restrictions on the transfer of the Securities in
violation of the Securities Act.
8. Persons Deemed Owners
The registered holder of this Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Corporation at its request unless an abandoned property law designates another
person. After any such payment, Holders entitled to the money must look only to
the Corporation (unless abandoned property law designates another person) and
not to the Trustee for payment.
10. Satisfaction and Discharge of Indenture
On the terms and subject to certain conditions specified in the
Indenture, the Corporation will be discharged from the Indenture and the
Securities (other than certain
634606.8
4
specified provisions) or will be discharged from certain covenants under the
Indenture and the Securities upon deposit with the Trustee of moneys or U.S.
Government Obligations sufficient to pay at maturity or upon redemption all
Securities not previously delivered to the Trustee for cancellation, including
principal and accrued interest and all other sums then payable by the
Corporation under the Indenture.
11. Amendment, Supplement, Waiver
Subject to certain exceptions, (i) the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in principal amount outstanding of the Securities, and (ii) any past
default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in principal amount outstanding of the
Securities. Subject to certain exceptions, without the consent of any
Securityholder, the Corporation and the Trustee may amend or supplement the
Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities
or to make any change that does not adversely affect the rights of any
Securityholder.
12. Defaults and Remedies
Each of the following is an Event of Default: default for 30 days in
payment of any interest on the Securities; default in payment of any principal
of the Securities when the same becomes due and payable at stated maturity, upon
redemption, upon declaration or otherwise; failure by the Corporation for 30
days after notice to the Corporation by the Trustee or to the Corporation and
the Trustee by the Holders of at least 25% aggregate principal amount of the
Securities to comply with certain covenants and agreements in the Indenture
relating to the payment of dividends and other distributions by the Corporation
and Subsidiaries, the sale or transfer of assets, the incurrence of debt by the
Corporation and Subsidiaries, transactions with affiliates and certain mergers,
consolidations and transfers of assets; failure by the Corporation for 60 days
after notice to the Corporation by the Trustee or to the Corporation and the
Trustee by the Holders of at least 25% aggregate in principal amount of the
Securities to comply with certain other covenants and agreements in the
Indenture and the Securities; certain payment defaults with respect to other
indebtedness of the Corporation or certain of its Subsidiaries, or other
defaults resulting in the acceleration of such other indebtedness, where the
aggregate of such indebtedness exceeds $5,000,000; and certain events of
bankruptcy or insolvency. If an Event of
634606.8
5
Default occurs and is continuing, the Holders of at least 25% in principal
amount of the Securities may declare the principal of and accrued interest on
all the Securities to be due and payable immediately. Securityholders may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may refuse to enforce the Indenture or the Securities unless it receives
reasonable indemnity or security. Subject to certain limitations, Holders of a
majority in principal amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
13. Trustee Dealings with the Corporation
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Corporation or its affiliates and may otherwise deal with the
Corporation or its affiliates with the same rights it would have if it were not
Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Corporation and the Trustee shall not have any liability for any obligations of
the Corporation under the Securities or the Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
15. Authentication
This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent on the other side of this
Security.
16. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
634606.8
6
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Corporation has caused CUSIP numbers to
be printed on the Securities and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Security holders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Corporation will furnish to any Securityholder upon written
request and without charge to such Holder a copy of the Indenture which has in
it the text of this Security in larger type. Requests may be made to: Ampex
Corporation, 000 Xxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, Attention of
Secretary.
634606.8
7
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Corporation pursuant to
Section 4.05 or 4.10 of the Indenture, check the Box: { }
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.05 or 4.10 of the Indenture, state the amount:
$-------------
Date: Your Signature:
----------------- ------------------------
(Sign exactly as
your name appears on the
other side of this Note)
By:
----------------------------------
NOTICE: To be signed by an
executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a participant
in the Securities Transfer Agent Medallion Program ("STAMP") or similar program.
634606.8
8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
-------------------------------------------------------
(insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Corporation.
The agent may substitute another to act for him.
Date: Signature(s):
-----------------
---------------------------
Sign exactly as your name
appears on the other side
of this Security
Signature Guarantee:
---------------
634606.8
9
EXHIBIT C
Form of Letter To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
----------, ----
[ ]
New York, New York
Attention: Corporate Trust Department
Re: Amex Corporation (the "Company")
12% Senior Notes
due 2003 (the "Notes")
--------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate principal
amount of the Notes, we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated January 23, 1998 relating to the Notes
and such other information as we deem necessary in order to make our
investment decision. We acknowledge that we have read and agreed to
the matters stated in the section entitled "Transfer Restrictions" of
the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture dated as of January 28, 1998 relating to the Notes (the
"Indenture") and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933,
as amended (the "Securities Act").
3. We understand that the Notes have not been registered under
the Securities Act, and that the Notes may not be offered or sold
except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Notes within three
years after the original issuance of the Notes, we will do so only (A)
to the Company or any subsidiary thereof, (B) inside the United States
in accordance with Rule 144A under the Securities Act
634606.8
to a "qualified institutional buyer" (as defined herein), (C) inside
the United States to an "institutional accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you a signed
letter substantially in the form of this letter, (D) outside the
United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), or (F)
pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that resales of the
Notes are restricted as stated herein.
4. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Company such certification,
written legal opinions and other information as you and the Company
may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment, as the case may be.
6. We are acquiring the Notes purchased by us for our own account
or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
634606.8
You, the Company and counsel for the Company are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
------------------------------
Authorized Signature
634606.8
