Exhibit 4.4
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HIGH VOLTAGE ENGINEERING CORPORATION
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of December 22, 1999
to
INDENTURE
Dated as of August 8, 1997,
as amended by First Supplemental Indenture dated
as of March 19, 1998
by and between
HIGH VOLTAGE ENGINEERING CORPORATION
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
-------------------------
$155,000,000
10 1/2% Senior Notes Due 2004
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SECOND SUPPLEMENTAL INDENTURE (the "SUPPLEMENTAL INDENTURE"), dated as
of December 22, 1999, by and between HIGH VOLTAGE ENGINEERING CORPORATION, a
Massachusetts corporation (the "COMPANY") and STATE STREET BANK AND TRUST
COMPANY (the "TRUSTEE").
RECITALS
WHEREAS, the Company and the Trustee have entered into that certain
Indenture dated as of August 8, 1997, as amended by a certain First Supplemental
Indenture dated March 19, 1998 (collectively, the "ORIGINAL INDENTURE")
providing for the issuance and delivery by the Company of its 10 1/2% Senior
Notes due 2004; and
WHEREAS, the Company is entering into certain financing and related
transactions (the "TRANSACTIONS") which will benefit the Company and its
Subsidiaries; and
WHEREAS, Article 8 of the Indenture provides a manner by which the
Indenture may be amended, and by which compliance with the provisions of the
Original Indenture may be waived, with the consent of the Holders of a majority
in aggregate principal amount of the then outstanding Notes by written act of
said Holders delivered to the Company and the Trustee; and
WHEREAS, the Holders of a majority in aggregate principal amount of the
outstanding Notes have delivered said consents to the Trustee and the Company;
and
WHEREAS, pursuant to and in accordance with Section 8.02 of the
Original Indenture, and with the consent of the Holders of a majority in
aggregate principal amount of the outstanding Notes, the Company and the Trustee
have agreed to enter into this Supplemental Indenture;
NOW THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows for the
benefit of each other party and for the equal and ratable benefit of the Holders
of the Company's 10 1/2% Senior Notes due 2004:
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Section 1. AMENDMENTS AND WAIVER.
1.1. Subject to Section 2.2 hereof, the following definitions are added
to Section 1.01 of the Original Indenture as follows:
"ANSALDO ACQUISITION" means the acquisition, directly or
indirectly, of all of the issued and outstanding shares of capital
stock of Ansaldo Sistemi Industriali S.p.A., pursuant to that certain
Share Purchase Agreement, dated as of October 7, 1999, by and between
the Company and Ansaldo Invest S.p.A.
"ASSET SECURITIZATION" means the sale, loan or contribution of
certain accounts receivable and receivables assets of certain of the
Company's Restricted Subsidiaries to the Company, the Company's sale of
these assets to High Voltage Funding Corporation, an Unrestricted
Subsidiary and such Unrestricted Subsidiary's sale of an undivided
interest in these assets to Blue Keel Funding, LLC pursuant to the
Purchase and Sale Agreement among such Restricted Subsidiaries and the
Company, the Purchase and Sale Agreement between the Company and such
Unrestricted Subsidiary and the Receivables Purchase Agreement among
such Unrestricted Subsidiary, the Company, Blue Keel Funding, LLC,
Fleet National Bank, and for certain limited purposes, such Restricted
Subsidiaries, each of which is dated as of December 23, 1999 and as
each may be amended from time to time; or any replacement or
supplemental facility pursuant to which the Company or any of its
Restricted Subsidiaries sells or contributes accounts receivable and
related assets to an Unrestricted Subsidiary for cash and/or notes or
other obligations of such Unrestricted Subsidiary; PROVIDED, that the
aggregate amount of capital investments by Blue Keel Funding, LLC and
any other purchasers of undivided interests in the receivables assets
of such Unrestricted Subsidiary shall not exceed $25 million.
"XXXXXX NOTES" means $8.5 million initial principal amount of
5.0% unsecured notes of Xxxxxx Corporation issued to the Company in
connection with
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the Ansaldo Acquisition and any additional such notes issued
in payment of interest thereon in accordance with the terms
thereof.
"PHI COLLATERAL" means the first priority security interest in
all real estate and improvements thereto owned by PHI located in Eden
Prairie, Minnesota, or any PHI Collateral substituted therefor in
accordance with the Pledge Agreement.
1.2. Subject to Section 2.2 hereof, the definition of "Collateral"
contained in Section 1.01 of the Original Indenture is hereby amended to read in
its entirety as follows:
"COLLATERAL" means the Intercompany Notes and the Xxxxxx Notes
in the possession of the Trustee pursuant to the Pledge Agreement.
1.3. Subject to Section 2.2 hereof, the definition of "Permitted
Investments" contained in Section 1.01 of the Original Indenture is hereby
amended to read in its entirety as follows:
"PERMITTED INVESTMENTS" means, for any Person, Investments
made on or after the date of this Indenture consisting of:
(i) Investments by the Company, or by a Restricted Subsidiary
thereof, in the Company or a Restricted Subsidiary, provided that any
such Investment is permitted under clauses (a), (b) or (c) of Section
4.14;
(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted
Subsidiary thereof, in a Person, if as a result of such Investment (a)
such Person becomes a Restricted Subsidiary of the Company or (b) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary thereof;
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(iv) Existing Investments in a Restricted Subsidiary which
becomes an Unrestricted Subsidiary after a Qualified Subsidiary IPO;
provided, however, that investments by the Company in a Restricted
Subsidiary in anticipation of a Qualified Subsidiary IPO shall not be
considered Permitted Investments;
(v) reasonable and customary loans made to employees in
connection with their relocation not to exceed $1,000,000 in the
aggregate at any one time outstanding;
(vi) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are
issued by a third party to the Company or Restricted Subsidiary solely
as partial consideration for the consummation of an Asset Sale that is
otherwise permitted under Section 4.10;
(vii) Investments in High Voltage Funding Corporation, or any
other Unrestricted Subsidiary of the Company formed solely to be the
purchaser in an Asset Securitization, in connection with an Asset
Securitization; and
(viii) other Investments that do not exceed $1,000,000 at any
time outstanding plus, the aggregate amount returned in cash on or with
respect to Investments made pursuant to this clause (vii) not to exceed
the aggregate amount invested by the Company therein.
1.4. Subject to Section 2.2 hereof, the definition of "Pledge
Agreement" contained in Section 1.01 of the Original Indenture is hereby amended
to read in its entirety as follows:
"PLEDGE AGREEMENT" means, collectively, (i) the Amended and
Restated Pledge Agreement, between the Company and the Trustee dated
December 31, 1999 relating to the pledge of the Collateral by the
Company to secure its Obligations hereunder and (ii) the Pledge
Agreement among PHI, the Company and the Trustee dated on or before
January 31, 2000 relating to the pledge of the PHI Collateral by PHI to
secure the Obligations of the Company hereunder.
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1.5. Subject to Section 2.2 hereof, the definition of "Unrestricted
Subsidiary" contained in Section 1.01 of the Original Indenture is hereby
amended to read in its entirety as follows:
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of an
Unrestricted Subsidiary, (b) Xxxxxx Corporation and (c) any Subsidiary
of the Company which is classified after the Issue Date as an
Unrestricted Subsidiary by a vote adopted by the Board of Directors of
the Company; PROVIDED that, other than a Restricted Subsidiary which
may be classified as an Unrestricted Subsidiary upon consummation of a
Qualified Subsidiary IPO in compliance with Section 4.22, a Subsidiary
may be so classified as an Unrestricted Subsidiary only if (x) the
Restricted Subsidiary to be so designated has total assets of $1,000 or
less or (y) immediately after giving effect to such designation, the
Company could incur at least $1.00 of additional Indebtedness pursuant
to the first paragraph of Section 4.06; and PROVIDED, FURTHER, that the
Company could make a Restricted Payment in an amount equal to the
greater of the fair market value (as determined by the Board of
Directors in good faith) and book value of such Restricted Subsidiary
pursuant to Section 4.09 and such amount is thereafter treated as a
Restricted Payment for the purpose of calculating the aggregate amount
available for Restricted Payments thereunder. The Trustee shall be
given prompt notice by the Company of each resolution adopted by the
Board of Directors of the Company under this provision, together with a
copy of each such resolution adopted.
1.6. Subject to Section 2.2 hereof, Section 4.09 of the Original
Indenture is hereby amended to read in its entirety as follows:
Section 4.09. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not make, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any
Restricted Payment, unless:
(a) no Default or Event of Default shall have
occurred and be continuing at the time of or immediately after
giving effect to such Restricted Payment;
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(b) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness)
under Section 4.06; and
(c) immediately after giving effect to such
Restricted Payment, the aggregate of all Restricted Payments
declared or made after the Issue Date does not exceed the sum
of (1) 50% of the Company's cumulative Consolidated Net Income
after the Issue Date (or minus 100% of any cumulative deficit
in Consolidated Net Income during such period), (2) 100% of
the aggregate Net Proceeds and the fair market value of
securities or other property received by the Company as a
capital contribution to the common equity of the Company after
the Issue Date and from the issue or sale, after the Issue
Date, of Capital Stock (other than Disqualified Capital Stock
or Capital Stock of the Company issued to any Subsidiary of
the Company) of the Company or any Indebtedness or other
securities of the Company convertible into or exercisable or
exchangeable for Capital Stock (other than Disqualified
Capital Stock) of the Company which has been so converted or
exercised or exchanged, as the case may be and (3) $350,000.
For purposes of determining under this clause (c) the amount
expended for Restricted Payments, cash distributed shall be
valued at the face amount thereof and property other than cash
shall be valued at its fair market value.
The provisions of this covenant shall not prohibit (i) the
payment of any distribution within 60 days after the date of
declaration thereof, if at such date of declaration such payment would
comply with the provisions of this Indenture, (ii) the retirement of
any shares of Capital Stock of the Company or subordinated Indebtedness
by conversion into, or by or in exchange for, shares of Capital
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Stock (other than Disqualified Capital Stock), or out of, the Net
Proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of other shares of Capital Stock of the
Company (other than Disqualified Capital Stock), (iii) the redemption
or retirement of Indebtedness of the Company subordinated to the Notes
in exchange for, by conversion into, or out of the Net Proceeds of, a
substantially concurrent sale or incurrence of Indebtedness (other than
any Indebtedness owed to a Subsidiary) of the Company that is
contractually subordinated in right of payment to the Notes to at least
the same extent as the Subordinated Indebtedness being redeemed or
retired, (iv) the retirement of any shares of Disqualified Capital
Stock by conversion into, or by exchange for, shares of Disqualified
Capital Stock, or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of other
shares of Disqualified Capital Stock, (v) so long as no Default or
Event of Default shall have occurred and be continuing, the payment of
cash dividends on the Series A Preferred Stock when such dividends are
required to be paid in cash in accordance with the Restated Articles,
(vi) payment, from the net proceeds of the Offerings, of up to
$2,250,000 to Parent to be used to repurchase from the High Voltage
Engineering Corporation Retirement Plan shares of the common stock of
Parent within 60 days of the Issue Date for not more than $2,250,000,
and fund a proportional accrual relating to the Subordinated Notes
Warrants of up to $150,000, (vii) so long as no Default or Event of
Default shall have occurred and be continuing, the exchange of Warrants
for Subsidiary Warrants or Common Shares for Subsidiary Shares in the
event of a Qualified Subsidiary IPO, (viii) payments required to effect
the reclassification of an Unrestricted Subsidiary as a Restricted
Subsidiary in compliance Section 4.22, (ix) the payment of management
fees for services provided by Parent or its employees in an aggregate
annual amount not to exceed $750,000 and (x) payment for the Xxxxxx
Notes; PROVIDED, HOWEVER, that any amounts paid by the Company pursuant
to clauses (i), (v), (vi), (vii) and (x) shall reduce amounts otherwise
available for Restricted
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Payments, except that, in the case of clause (x) above, the amounts
otherwise available for Restricted Payments shall be reduced only by
the principal amount of the Xxxxxx Notes outstanding on the Restricted
Payment determination date, subject to a maximum of $8.5 million.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating
that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by this Section 4.09 were
computed, which calculations may be based upon the Company's latest
available financial statements, and that no Default or Event of Default
exists and is continuing and no Default or Event of Default will occur
immediately after giving effect to any Restricted Payments.
1.7. Subject to Section 2.2 hereof, Section 6.01 of the Original
Indenture is hereby amended to read in its entirety as follows:
Section 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if
(1) there is a default in payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration or otherwise;
(2) there is a default in the payment of any interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days;
(3) there is a default by the Company or any Guarantor in the
observance or performance of any other covenant in the Notes or this
Indenture for 60 days after written notice from the Trustee or the
holders of not less than 25% in aggregate principal amount of the Notes
then outstanding;
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(4) there is a default in the payment when due of principal,
interest or premium in an aggregate amount of $3,000,000 or more with
respect to any Indebtedness of the Company or any Restricted Subsidiary
thereof, or the acceleration of any such Indebtedness aggregating
$3,000,000 or more which default shall not be cured, waived or
postponed pursuant to an agreement with the holders of such
Indebtedness within 60 days after written notice of such Default to the
Company by the Trustee or to the Company and the Trustee by any Holder,
or such acceleration shall not be rescinded or annulled within 20 days
after written notice of such Default to the Company by the Trustee or
to the Company and the Trustee by any Holder;
(5) the entry of a final judgment or judgments which can no
longer be appealed for the payment of money in excess of $3,000,000
shall be rendered against the Company or any Restricted Subsidiary
thereof, and shall not be discharged for any period of 60 consecutive
days during which a stay of enforcement shall not be in effect;
(6) the Company or any Significant Restricted 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 all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become
due;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
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(A) is for relief against either of the Company or
any Restricted Subsidiary in an involuntary case,
(B) appoints a Custodian of either of the Company or
any Restricted Subsidiary or for all or substantially all of
the property of either of the Company or any Restricted
Subsidiary, or
(C) orders the liquidation of either of the Company
or any Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60 days;
(8) the Company fails to cause up to $2,250,000 of the
proceeds from the Issue Date Offerings to be applied, as completely as
possible, to the repurchase of the common stock of Parent held by the
High Voltage Engineering Corporation Retirement Plan within 60 days of
the Issue Date;
(9) the Company fails to cause the Foreign Realignment to
occur on or before May 31, 1998; or
(10) the Company fails to cause PHI to provide a valid and
effective first priority security interest in the PHI Collateral as
provided for the in the Company's Supplement to Consent Solicitation
Statement dated December 21, 1999, supplementing the Company's Consent
Solicitation Statement dated November 30, 1999, on or prior to January
31, 2000.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Subject to Sections 7.01 and 7.02, the Trustee shall not be
charged with knowledge of any Default, Event of Default, Change of
Control or Asset Sale or the requirement for payment of Additional
Interest unless written notice thereof shall have been given to a
Responsible Officer at the Corporate Trust Office of the Trustee by the
Company or any other Person.
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1.8. Subject to Section 2.2 hereof, the following Section 4.26 is
hereby added to the Indenture:
Section 4.26. TEMPORARY ADDITIONAL INTEREST
In addition to the Interest required to be paid by the Company
under the Notes, from and after December 23, 1999 and until such time
as the Company is able to incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 4.06 (giving pro forma
effect to the expiration of the Company's obligations under this
Section 4.26 in making such calculation), the Company shall pay, as
additional Interest on the Notes, and in accordance with all of the
terms and conditions of the Notes, additional interest on the principal
amount thereof at a rate of 0.25% per annum.
1.9. Subject to Section 2.2 hereof, compliance by the Company with
Sections 4.09, 4.11, 4.13, 5.01 and 5.02 of the Original Indenture are hereby
waived to the extent any default would occur under such Sections as a result of
the transactions contemplated by the Ansaldo Acquisition (as defined in the
Consent Soliciation Statement of the Company dated November 30, 1999, as
supplemented on December 21, 1999, relating to certain waivers and amendments as
contemplated herein relating to the Company's 10 1/2% Senior Notes due 2004 (the
"Consent Solicitation Statement")), the purchase by the Company of $8.5 million
initial principal amount of Xxxxxx Notes or entrance into the Asset
Securitization (as defined in the Consent Solicitation Statement). In addition,
in accordance with Section 6.04 of the Indenture, any default arising under
Section 6.01(3) of the Indenture as a result of the completion of the Ansaldo
Acquisition, the Asset Securitization and such purchase of the Xxxxxx Notes, and
any other default arising under any other convenant of the Indenture that may
be, or may have been, inadvertently breached as a result of the Ansaldo
Acquisition, the Asset Securitization or such purchase of the Xxxxxx Notes are
hereby waived.
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Section 2. MISCELLANEOUS.
2.1. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH OF
MASSACHUSETTS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS SUPPLEMENTAL INDENTURE.
2.2. OPERATIVE TIME. Upon the execution and delivery of this
Supplemental Indenture by the Company and the Trustee, the Indenture shall be
supplemented in accordance herewith, and this Supplemental Indenture shall form
a part of the Original Indenture for all purposes, and every Holder of Notes
heretofore or hereafter authenticated and delivered under the Original Indenture
shall be bound hereby and thereby; PROVIDED, however, that Section 1 hereof
shall become operative upon the satisfaction of the Acquisition Condition (as
defined in the Consent Solicitation Statement); PROVIDED, in the event that the
Acquisition Condition is not satisfied on or prior to January 31, 2000, this
Supplemental Indenture shall become null and void. Upon the receipt by the
Trustee of (i) an Officers' Certificate certifying that such conditions have
been satisfied, or waived by the Company, and (ii) an Opinion of Counsel to the
effect set forth in Section 8.06 of the Original Indenture, the amendments set
forth herein shall become operative.
2.3. CONFIRMATION OF THE ORIGINAL INDENTURE. Except as amended hereby,
the Original Indenture shall remain in full force and effect and is hereby
ratified and confirmed in all respects.
2.4. MULTIPLE COUNTERPARTS. The parties may sign multiple counterparts
of this Supplemental Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent one and the same agreement.
2.5. SEPARABILITY. Each provision of this Supplemental Indenture shall
be considered separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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2.6. HEADINGS. The captions of the various section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
2.7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Company.
2.8. DEFINITIONS. All terms defined in the Original Indenture shall
have the same meaning in this Supplemental Indenture unless otherwise defined
herein.
IN WITNESS WHEREOF, the parties hereto caused this Supplemental
Indenture to be duly executed as of this 22nd day of December, 1999.
HIGH VOLTAGE ENGINEERING CORPORATION
By: __________________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: __________________________________________
Name:
Title:
