THIRD SUPPLEMENTAL INDENTURE dated as of October 4, 1996 (the
"Third Supplemental Indenture"), to the Indenture, dated as of August 6, 1992
(the "Indenture"), between XXXXXX XXXXXXXXXXX, a Delaware corporation
(hereinafter called the "Company"), having its principal executive office at
Township Line and Xxxxx Xxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxxxx, 00000 and BANK
ONE COLUMBUS, N.A., a national banking association (hereinafter called the
"Trustee"), having its Corporate Trust Office at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery
of the Indenture to provide for the issuance from time to time of its
debentures, notes, bonds or other evidences of indebtedness (hereinafter
called the "Debt Securities") to be issued in one or more series, as in the
Indenture provided;
WHEREAS, the Company desires and has requested the Trustee to join
it in the execution and delivery of this Third Supplemental Indenture in order
to establish and provide for the issuance by the Company of a series of Debt
Securities designated as its 11 3/4% Senior Notes due 2004 in the aggregate
principal amount of $450,000,000, a specimen copy of which is attached hereto
as Exhibit A (the "Notes"), on the terms set forth herein;
WHEREAS, Section 1101 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the
consent of any holder of any Debt Securities to, inter alia, establish the
terms of any Debt Securities as permitted by Sections 201 and 301 of the
Indenture, provided certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the
execution and delivery of this Third Supplemental Indenture have been complied
with; and
WHEREAS, all things necessary to make this Third Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Indenture have
been done;
NOW THEREFORE:
There is hereby established a series (as that term is used in
Section 301 of the Indenture) of Debt Securities to be issued under the
Indenture, which series of Debt Securities shall have the terms set forth
herein and in the Notes, and in consideration of the premises and the purchase
and acceptance of the Notes by the holders thereof, the Company mutually
covenants and agrees with the Trustee, for the equal and proportionate benefit
of all holders of the Notes, that the Indenture is supplemented and amended,
to the extent and for the purposes expressed herein, as follows:
ARTICLE ONE
Scope of This Third Supplemental Indenture
Section 1.1 Changes, etc. Applicable Only to the Notes. The
changes, modifications and supplements to the Indenture effected by this Third
Supplemental Indenture in Sections 2.1 through 2.6 hereof shall only be
applicable with respect to, and govern the terms of, the Notes, which shall be
limited in aggregate principal amount to $450,000,000, except as provided in
Section 301(2) of the Indenture, and shall not apply to any other Debt
Securities which may be issued under the Indenture unless a supplemental
indenture with respect to such other Debt Securities specifically incorporates
such changes, modifications and supplements.
ARTICLE TWO
Amendments to the Indenture
Section 2.1 Amendments to Section 101. Section 101 of the
Indenture is hereby amended by adding the following definitions in their
proper alphabetical order:
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time such Person becomes a Consolidated Subsidiary or (ii) assumed
in connection with the acquisition of assets of such Person.
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Redeemable Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the
date of determination to the dates of each successive scheduled principal
payment or mandatory redemption of such Indebtedness or Redeemable Stock,
as the case may be, multiplied by the amount of such principal payment or
mandatory redemption by (ii) the sum of all such principal payments or
mandatory redemption amounts, as the case may be.
"Bank Credit Agreement" means the Credit Agreement dated as of June
26, 1996, among the Company, certain banks, and Bankers Trust Company, as
agent.
"Calculation Date" shall have the meaning specified in the
definition of "Change in Control."
"Change in Control" means an event or series of events as a result
of which (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) is or becomes the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act) of shares entitling the holder thereof
to cast more than 50% of the votes for the election of directors of the
Company; (ii) the Company consolidates with or merges into any other
corporation, or conveys, transfers or leases all or substantially all of
its assets to any person, or any other corporation merges into the
Company, and, in the case of any such transaction, the outstanding Common
Stock of the Company is changed or exchanged as a result; (iii) at any
time Continuing Directors do not constitute a majority of the Board of
Directors; or (iv) on any day (a "Calculation Date") the Company makes
any distribution or distributions of cash, property or securities (other
than regular quarterly dividends, Common Stock, preferred stock which is
substantially equivalent to Common Stock or rights to acquire Common
Stock or preferred stock which is substantially equivalent to Common
Stock) to holders of Common Stock, or the Company or any of its
Consolidated Subsidiaries purchases or otherwise acquires Common Stock,
and the sum of the fair market value of such distribution or purchase on
the Calculation Date, plus the fair market value, when made, of all other
such distributions and purchases which have occurred during the 12-month
period ending on the Calculation Date, in each case expressed as a
percentage of the aggregate market price of all of the shares of Common
Stock of the Company outstanding at the close of business on the last day
prior to the date of declaration of each such distribution or the date of
purchase, exceeds 50%.
"Common Stock" means any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which is not subject to redemption by the
Company.
"Company Notice" shall have the meaning specified in Section 1212.
"Consolidated Interest Coverage Ratio" means for any period the
ratio of (i) the sum of Consolidated Net Income, Consolidated Interest
Expense and Consolidated Tax Expense, plus, without duplication, all
depreciation and all amortization, in each case, for such period, of the
Company and its Consolidated Subsidiaries on a consolidated basis, all as
determined in accordance with generally accepted accounting principles,
to (ii) Consolidated Interest Expense for such period; provided, that in
making such computation, the Consolidated Interest Expense attributable
to interest on any Indebtedness computed on a pro forma basis and bearing
a floating interest rate shall be computed as if the rate in effect on
the date of computation had been the applicable rate for the entire
period.
"Consolidated Interest Expense" means for any period the sum of (i)
the aggregate of the interest expense on Indebtedness of the Company and
its Consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with generally accepted accounting
principles, plus (ii) without duplication, that portion of capital lease
obligations of the Company and its Consolidated Subsidiaries
representative of the interest factor for such period, determined on a
consolidated basis in accordance with generally accepted accounting
principles, plus (iii) without duplication, dividends in respect of
preferred or preference stock of a Consolidated Subsidiary of the Company
held by Persons other than the Company or a Consolidated Subsidiary of
the Company. For purposes of clause (iii) of the preceding sentence,
dividends shall be deemed to be an amount equal to the actual dividends
paid divided by 1.00 minus the applicable actual combined federal, state,
local and foreign income tax rate of the Company (expressed as a
decimal), on a consolidated basis, for the fiscal year immediately
preceding the date of the transaction giving rise to the need to
calculate Consolidated Interest Expense.
"Consolidated Net Income" means for any period the net income or
loss of the Company and its Consolidated Subsidiaries for such period on
a consolidated basis as determined in accordance with generally accepted
accounting principles adjusted by excluding the after-tax effect of (i)
net gains or losses in respect of dispositions of assets other than in
the ordinary course of business, (ii) any gains or losses from currency
exchange transactions not in the ordinary course of business consistent
with past practice, (iii) any gains or losses attributable to write-ups
or write-downs of assets or liabilities other than in the ordinary course
of business, (iv) any special or extraordinary charges attributable to
restructuring transactions other than in the ordinary course of business,
(v) any income or loss of Persons acquired in a "pooling of interest"
transaction prior to the date of combination and (vi) the cumulative
effect of a change in accounting principle from the date of this Third
Supplemental Indenture; provided that, if the consolidated financial
statements of the Company and its Consolidated Subsidiaries for such
period give effect to Statement 106 of the Financial Accounting Standards
Board ("FASB 106"), Consolidated Net Income for such period shall be (a)
increased by any expenses (net of any income tax benefits attributable to
such expenses) for post-retirement benefits other than pensions ("Post-
Retirement Benefits") to the extent that such expenses are deducted from
net income in accordance with FASB 106 and (b) shall be decreased by the
aggregate amount of cash payments for Post-Retirement Benefits during
such period (net of any income tax benefits attributable to such cash
payments on a pro forma basis calculated in the same manner as the income
tax benefits referred to in clause (a)).
"Consolidated Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of the capital stock or
other ownership interests having ordinary voting power to elect a
majority of the Board of Directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"Consolidated Tax Expense" means for any period the aggregate of
the federal, state, local and foreign income tax expenses of the Company
and its Consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting
principles.
"Continuing Director" means at any date a member of the Company's
Board of Directors (i) who was a member of such board 24 months prior to
such date or (ii) who was nominated or elected by at least two-thirds of
the directors who were Continuing Directors at the time of such
nomination or election or whose election to the Company's Board of
Directors was recommended or endorsed by at least two-thirds of the
directors who were Continuing Directors at the time of such election.
"Convertible Debt" means Indebtedness of the Company that, by its
terms, is convertible in its entirety into Common Stock.
"Exchange Act" shall have the meaning specified in the definition
of "Change in Control."
"Existing Redeemable Stock" shall have the meaning specified in
Section 1211.
"Finance Subsidiary" means a corporation of the type described in
clause (b) of the definition of "Subsidiary."
"Foreign Subsidiary" means a corporation of the type described in
clause (a) of the definition of "Subsidiary."
"generally accepted accounting principles" means generally accepted
accounting principles in the United States as in effect (unless otherwise
stated) as of the date of this Third Supplemental Indenture, including,
without limitation, those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession.
"guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness of such other
Person (whether arising by standby letter of credit or otherwise) or (ii)
entered into for the purpose of assuring in any other manner the holder
of such Indebtedness of the payment thereof or to protect such holder
against loss in respect thereof (in whole or in part); provided that the
term guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The term "guarantee" used as a verb
has a corresponding meaning.
"Indebtedness" means (i) any liability of any Person (a) for
borrowed money, or (b) evidenced by a bond, note, debenture or similar
instrument (including purchase money obligations but excluding Trade
Payables), or (c) for the payment of money relating to a lease that is
required to be classified as a capitalized lease obligation in accordance
with generally accepted accounting principles, or (d) for preferred or
preference stock of a Consolidated Subsidiary of the Company held by
Persons other than the Company or any Consolidated Subsidiary of the
Company; (ii) any liability of others described in the preceding clause
(i) that the Person has guaranteed, that is recourse to such Person or
that is otherwise its legal liability; and (iii) any amendment,
supplement, modification, deferral, renewal, extension or refunding of
any liability of the types referred to in clauses (i) and (ii) above.
"Intercompany Obligations" means any Indebtedness or any other
obligation of the Company or any Consolidated Subsidiary of the Company
which, in the case of the Company, is owing to any Consolidated
Subsidiary of the Company and which, in the case of any Consolidated
Subsidiary of the Company, is owing to the Company or any other
Consolidated Subsidiary of the Company.
"Notes" shall have the meaning specified in the second recital of
this Third Supplemental Indenture.
"notice date" shall have the meaning specified in Section 1211.
"Permitted Indebtedness" means (i) Indebtedness of the Company or
any Consolidated Subsidiary of the Company outstanding on the date of
this Third Supplemental Indenture; (ii) Indebtedness of the Company and
its Consolidated Subsidiaries at any time outstanding not in excess of
$500 million in the aggregate; (iii) Indebtedness of the Company and its
Consolidated Subsidiaries at any time outstanding not in excess of $1
billion in the aggregate under the Bank Credit Agreement (and any
refinancings or replacements thereof or additions thereto) and
Indebtedness of Foreign Subsidiaries at any time outstanding not in
excess of $250 million in the aggregate under bank loan facilities;
(iv) Indebtedness of Finance Subsidiaries so long as such Indebtedness is
non-recourse to, not guaranteed by and is not otherwise the legal
liability of the Company or any other Consolidated Subsidiary;
(v) Intercompany Obligations; and (vi) any renewals, extensions,
substitutions, refundings, refinancings or replacements of any
Indebtedness described in clause (i) above ("Refinancing Indebtedness");
provided that (a) the aggregate principal amount of the Refinancing
Indebtedness shall not exceed the sum of (1) the aggregate principal
amount and accrued interest of the Indebtedness to be refinanced (or if
such Indebtedness was issued at an original issue discount, the original
issue discount price plus amortization of the original issue discount at
the time of the incurrence of the Refinancing Indebtedness) and (2) the
reasonable fees and expenses directly incurred in connection with such
Refinancing Indebtedness, (b) such Refinancing Indebtedness is
subordinated in right of payment to the Notes at least to the extent that
the Indebtedness to be refinanced is subordinated to the Notes, (c)
Refinancing Indebtedness incurred by any Consolidated Subsidiary shall
not be used to refinance Indebtedness of the Company, (d) all proceeds of
such Refinancing Indebtedness are applied to the payment, redemption,
repurchase, defeasance, acquisition or retirement of the Indebtedness to
be refinanced within 12 months before or after such event and (e) such
Refinancing Indebtedness determined as of the date of incurrence does not
mature prior to the final scheduled maturity date of the Notes and the
Average Life of such Refinancing Indebtedness is equal to or greater than
the remaining Average Life of the Notes; provided that this clause (e)
shall apply only if the final scheduled maturity date of the Indebtedness
being refinanced is later than the final scheduled maturity date of the
Notes. Notwithstanding clauses (ii) and (iii) above, up to $250 million
of the amounts set forth in such clauses may be subtracted from such
amounts and applied to increase any other amount set forth in either of
such clauses.
"Post-Retirement Benefits" shall have the meaning specified in the
definition of "Consolidated Net Income."
"Put Price" means 101% of the principal amount of the Notes to be
repurchased on the Repurchase Date in accordance with Section 1212, plus
accrued and unpaid interest to the Repurchase Date.
"Put Right" means the unconditional right of any holder of
Indebtedness of the Company to require the Company to pay such
Indebtedness prior to its stated maturity on the date or dates specified
at the time of the incurrence of such Indebtedness or the right of any
holder of Indebtedness of the Company to require the Company to pay such
Indebtedness prior to its stated maturity upon the occurrence of a Change
in Control or similar event.
"Redeemable Stock" means any class or series of preferred or
preference stock of the Company with a stated maturity which is prior to
the Stated Maturity of the Notes or that by its terms or otherwise is
required to be redeemed or retired, in whole or in part, prior to the
Stated Maturity of the Notes or is redeemable at the option of the holder
thereof at any time prior to the Stated Maturity of the Notes. The
stated maturity of any class or series of preferred or preference stock
of the Company that is mandatorily convertible into, or exchangeable for,
another class or series of capital stock of the Company shall be the
stated maturity of such class or series of capital stock.
"Refinancing Indebtedness" shall have the meaning specified in the
definition of "Permitted Indebtedness."
"Related Person" means (i) any Affiliate of the Company, (ii) any
Person who directly or indirectly holds 10% or more of any class of
capital stock of the Company, (iii) with respect to any such natural
Person, any other Person having a relationship with such Person by blood,
marriage or adoption not more remote than first cousin and (iv) any
officer or director of the Company; provided, however, "Related Person"
shall not include the Unisys Employees Savings Thrift Trust, or any
successor thereof.
"Repurchase Date" shall have the meaning specified in Section 1212.
"Repurchase Right" shall have the meaning specified in Section
1212.
"Restricted Payments" shall have the meaning specified in Section
1211.
"Trade Payables" means accounts payable or any other indebtedness
or monetary obligations to trade creditors created or assumed in the
ordinary course of business in connection with the obtaining of materials
or services.
"Wholly Owned Consolidated Subsidiary" means, with respect to any
Person, a Consolidated Subsidiary the voting stock (excluding directors'
qualifying shares) of which is more than 90% owned, directly or
indirectly, by such Person.
Section 2.2 Amendments to Section 501. Section 501 of the
Indenture is hereby amended by adding, immediately following Section 501(7)
thereof, the following new Sections 501(8) through 501(11):
(8) default (i) in the payment of any scheduled principal of or
interest on any Indebtedness of the Company or any Consolidated
Subsidiary of the Company (other than the Notes) aggregating more than
$25 million in principal amount when due after giving effect to any
applicable grace period or (ii) in the performance of any other term or
provision of any Indebtedness of the Company or any Consolidated
Subsidiary of the Company (other than the Notes) in excess of $25 million
principal amount that results in such Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not have been
rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 15 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and to the Trustee by the Holders of at least 25% in principal
amount of the Notes a written notice specifying such events or events of
default and stating that such notice is a "Notice of Default" hereunder;
or
(9) the entry against the Company or any Consolidated Subsidiary
of the Company of one or more judgments, decrees or orders by a court
having jurisdiction in the premises from which no appeal may be or is
taken for the payment of money, either individually or in the aggregate,
in excess of $25 million and the continuance of such judgment, decree or
order unsatisfied and in effect for any period of 45 consecutive days
after the amount thereof is due without a stay of execution and there has
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and to the Trustee by the Holders of at least
25% in principal amount of the Notes a written notice specifying such
entry and continuance of such judgment, decree or order and stating that
such notice is a "Notice of Default" hereunder; or
(10) default in the payment of the Put Price on a Repurchase Date
for any Note with respect to which the Repurchase Right has been
exercised; or
(11) default in the performance or breach of any of the terms
contained in Section 1001.
Section 2.3 Amendments to Section 1001. Section 1001 of the
Indenture is hereby amended by adding, immediately following Section 1001(6)
thereof, the following new Section 1001(7):
(7) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company or
a Consolidated Subsidiary of the Company which becomes the obligation of
the Company or any of its Consolidated Subsidiaries in connection with or
as a result of such transaction as having been incurred at the time of
such transaction), the Company or such successor corporation or Person
could incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 1210.
Section 2.4 Amendment to Section 1209. Section 1209 of the
Indenture is hereby amended by adding the following as a second paragraph
thereof:
When the Company becomes aware that any event has occurred and is
continuing which is, or after the giving of notice or lapse of time or
both would become, an Event of Default, the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or
facsimile transmission followed by hard copy by registered or certified
mail an Officers' Certificate specifying such event promptly after
becoming so aware.
Section 2.5 Amendments to Article 12. Article 12 of the Indenture
is hereby amended by adding, immediately following Section 1209 thereof, the
following new Sections 1210 through 1213:
SECTION 1210. Limitation on Company and Subsidiary Indebtedness.
The Company shall not, and shall not permit any Consolidated Subsidiary
of the Company to, create, incur, assume, guarantee the payment of, or
otherwise become liable for, any Indebtedness (including Acquired
Indebtedness) other than Permitted Indebtedness, unless, at the time of such
event and after giving effect thereto on a pro forma basis, the Company's
Consolidated Interest Coverage Ratio for the last four full fiscal quarters
immediately preceding such event, taken as one period, is not less than 2.0
to 1.
SECTION 1211. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Consolidated
Subsidiary of the Company to, directly or indirectly, (i) declare or pay
any dividend on, or make any distribution in respect of or purchase,
redeem or retire for value any capital stock of the Company, other than
(1) through the issuance solely of the Company's own capital stock (other
than Redeemable Stock) or options, warrants or other rights thereto or
(2) in the case of any such capital stock that is Redeemable Stock
("Existing Redeemable Stock"), through the issuance solely of the
Company's own capital stock (including new shares of Redeemable Stock,
provided such new shares of Redeemable Stock have an Average Life equal
to or greater than the lesser of (A) the remaining Average Life of the
Existing Redeemable Stock or (B) the remaining Average Life of the
Notes), or (ii) make any principal payment on, or redeem, repurchase,
defease or otherwise acquire or retire for value, prior to scheduled
maturity, mandatory sinking fund date or mandatory repayment date
(including any repayment date resulting from the exercise of a Put Right
by the holder of any Indebtedness, but excluding any repayment date
arising as a result of any Indebtedness being declared due and payable
prior to the date on which it would otherwise become due and payable due
to any default in the performance of any term or provision of such
Indebtedness), any Indebtedness of the Company which is subordinate in
right of payment to the Notes (other than with, and to the extent of, the
proceeds from the incurrence of Refinancing Indebtedness that constitutes
Permitted Indebtedness) (such payments or any other actions described in
(i) and (ii), collectively, "Restricted Payments").
(b) The Company or any Consolidated Subsidiary of the Company may
make a Restricted Payment which would otherwise be prohibited by
subsection (a) of this Section 1211, provided, that (i) at the time of
and after giving effect to the proposed Restricted Payment no Event of
Default (and no event that, after notice or lapse of time, or both, would
become an Event of Default) shall have occurred and be continuing;
(ii) at the time of and after giving effect to the proposed Restricted
Payment (the value of any such payment, if other than cash, as determined
by the Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution), the aggregate amount of all Restricted
Payments declared or made after June 30, 1992 shall not exceed the sum of
(1) 50% of the aggregate cumulative Consolidated Net Income of the
Company accrued on a cumulative basis during the period beginning after
June 30, 1992 and ending on the last day of the Company's last fiscal
quarter ending prior to the date of such proposed Restricted Payment (or,
if such aggregate cumulative Consolidated Net Income shall be a loss,
minus 100% of such loss) plus (2) the aggregate proceeds received by the
Company as capital contributions to the Company after June 30, 1992, or
from the issuance and sale (other than to a Consolidated Subsidiary of
the Company) after June 30, 1992 of capital stock of the Company
(excluding Redeemable Stock but including stock issued upon conversions
of Convertible Debt, stock issued to the Company's pension plans and
stock issued upon the exercise of options or warrants), plus (3) $250
million; and (iii) immediately after giving effect to such proposed
Restricted Payment the Company could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
1210; provided, however, the provisions of clause (iii) above shall not
be applicable to any declaration or payment in cash of current dividends
or dividends in arrears in respect of any series of preferred stock of
the Company.
(c) The foregoing provisions of subsections 1211 (a) and (b) will
not prevent the payment of any dividend within 60 days after the date of
its declaration, if, at the date of declaration, such payment would be
permitted by such provisions. Notwithstanding the foregoing, "Restricted
Payment" shall not include (i) the payment, during the period beginning
October 1, 1992 and ending June 30, 1994, of an aggregate of $185 million
of dividends in arrears in respect of the Company's preferred stock or
(ii) the redemption of Convertible Debt pursuant to the terms of the
indenture or other instrument under which such debt is issued, provided
that (1) the last reported sale price for the Company's Common Stock for
each of the five consecutive trading days immediately preceding the date
of the notice of redemption therefor (the "notice date") shall have
exceeded 115% of the conversion price for such Convertible Debt and (2)
the Company's Consolidated Interest Coverage Ratio for the last four
fiscal quarters immediately preceding such notice date, taken as one
period, is not less than 2.0 to 1.
SECTION 1212. Purchase of Notes Upon Change in Control.
(a) Upon the occurrence of a Change in Control, each Holder of
Notes shall have the right (the "Repurchase Right") to require the
Company to repurchase all or any portion of such Holder's Notes, in
integral multiples of $1,000, at the Put Price in cash, in accordance
with and subject to the terms of this Section 1212. Such repurchase
shall occur on the date (the "Repurchase Date") that is 45 days after the
date of the Company Notice hereinafter described. The Company will mail
a notice containing the information set forth in Subsection 1212(b) below
(the "Company Notice") to all Holders of Notes within 30 days following
any Change in Control and the Company will purchase all tendered Notes by
making payment of the Put Price on the Repurchase Date. The Company
shall promptly deliver a copy of the Company Notice to the Trustee and
shall cause a copy of such notice to be published in The Wall Street
Journal or another newspaper of national circulation.
(b) The Company Notice shall state:
(i) that a Change in Control has occurred and that each
Holder of Notes has the right to require the Company to repurchase
such Holder's Note at the Put Price in cash;
(ii) the circumstances and relevant facts regarding such
Change in Control;
(iii) the Repurchase Date and the instructions a Holder
of Notes must follow in order to have such Holder's Notes
repurchased in accordance with this Section 1212;
(iv) that any Note not tendered will continue to accrue
interest;
(v) that on the Repurchase Date any Note tendered for
payment pursuant to the terms hereof and for which money sufficient
to pay the Put Price has been deposited with the Trustee, as
provided in this Section 1212, shall cease to accrue interest after
the Repurchase Date;
(vi) that Holders electing to have a Note repurchased
pursuant to this Section 1212 will be required to surrender the
Note, duly endorsed for transfer, together with a notice in the
form entitled "Election to Exercise Repurchase Right Upon a Change
in Control" on the reverse of the Note, to the Company at the
address specified in the Company Notice on or prior to the close of
business on the 30th day after the date of the Company Notice; and
(vii) such other information as may be required by
applicable law and regulations;
provided that no failure of the Company to give the foregoing notices and
no defect therein shall limit the Repurchase Rights or affect the
validity of the proceedings for the repurchase of the Notes pursuant to
this Section 1212.
(c) Following a Change in Control, the Company shall accept for
payment Notes properly tendered pursuant to this Section 1212. Prior to
the Repurchase Date, the Company shall deposit with the Trustee money
sufficient to pay the Put Price for all Notes (or portions thereof) so
tendered and deliver, or cause to be delivered, to the Trustee Notes
properly tendered pursuant to this Section 1212 and accepted together
with an Officers' Certificate describing the Notes so tendered to and
being purchased by the Company. On the Repurchase Date, the Trustee
shall, to the extent that monies deposited with the Trustee are available
therefor, mail to the Holders of Notes so tendered and accepted payment
in an amount equal to the Put Price and, as soon as possible after such
payment, the Trustee shall cancel the Notes so tendered and accepted.
The Company will publicly announce the results of the Change in Control
tender offer as soon as practicable after the Repurchase Date. The
Company will issue to Holders whose Notes are purchased only in part new
Notes equal in principal amount to the unpurchased portion of the Notes
surrendered.
(d) Notwithstanding the foregoing, in repurchasing the Notes
pursuant to this Section 1212, the Company will comply with all
applicable tender offer rules, including but not limited to Sections
13(e) and 14(e) under the Exchange Act and Rules 13e-1 and 14e-1
thereunder.
(e) Each Holder of Notes properly tendered for purchase pursuant
to this Section 1212 who is not paid the Put Price for such Notes in the
manner described in Subsection 1212(c) will be entitled to receive (as
part of any subsequent payment of the Put Price prior to the earlier of
(i) the date such Holder's election to require the Company to purchase
such Notes is withdrawn or (ii) the date all outstanding Notes are
accelerated under Section 502 or an Event of Default under subsection
501(5) or 501(6) shall occur) interest on the entire principal of such
outstanding Notes at the rate provided in such outstanding Notes through
the date the Put Price is paid, to the extent not theretofore paid on
such Notes in accordance with their terms.
(f) The Company is solely responsible for performing the duties
and responsibilities contained in this Section 1212, other than the
obligations of the Trustee specifically set forth in Subsection 1212(c).
The Trustee shall not be responsible for any failure of the Company to
make any deposit with the Trustee or to deliver to the Trustee Notes
tendered pursuant to this Section 1212 or, subject to Section 601, any
failure of the Company to comply with any of the other covenants of the
Company contained in this Section 1212.
SECTION 1213. Limitation on Transactions with Related Persons.
The Company shall not, and shall not permit any of its Consolidated
Subsidiaries to, directly or indirectly, enter into or suffer to exist
any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with a Related Person unless such transaction or series of
transactions is on terms that are no less favorable to the Company or
such Consolidated Subsidiary, as the case may be, than would be available
in a comparable transaction with an unrelated third party; provided,
however, that the foregoing restrictions will not apply to (a)
transactions between or among any of the Company and its Wholly Owned
Consolidated Subsidiaries, (b) transactions between or among any of the
Company and its Consolidated Subsidiaries that are not Wholly Owned
Consolidated Subsidiaries, provided such transactions are entered into in
the ordinary course of business on terms and conditions consistent with
prior practice and (c) any transaction with an officer or director of the
Company or any Consolidated Subsidiary entered into in the ordinary
course of business (including, without limitation, compensation or
employee benefit and perquisite arrangements).
Section 2.6 Applicability of Article Fifteen. Pursuant to Section
301 of the Indenture, Article Fifteen of the Indenture shall be applicable to
the Notes.
Section 2.7 Other Provisions Unchanged. All provisions of the
Indenture, other than as set forth in Sections 2.1 through 2.6, inclusive, of
this Third Supplemental Indenture shall be unchanged by this Third
Supplemental Indenture and shall remain in full force and effect. The
Indenture, as supplemented and amended by this Third Supplemental Indenture,
is in all respects ratified and confirmed, and the Indenture and this Third
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
Section 2.8 Ranking. The Notes will be senior unsecured
obligations of the Company, ranking pari passu with all existing and future
senior indebtedness (including, without limitation, the indebtedness of the
Company represented by the notes and debentures referred to in Section 608
(c)(1) of the Indenture) of the Company and senior to all existing and future
subordinated indebtedness of the Company.
ARTICLE THREE
Miscellaneous
Section 3.1 Defined Terms. Unless otherwise provided in this
Third Supplemental Indenture, all defined terms used in this Third
Supplemental Indenture shall have the meanings assigned to them in the
Indenture.
Section 3.2 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Third
Supplemental Indenture limits, qualifies or conflicts with another provision
included in this Third Supplemental Indenture or in the Indenture which is
required to be included herein or therein by any of Section 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
Section 3.3 New York Law to Govern. THIS THIRD SUPPLEMENTAL
INDENTURE AND THE NOTES, SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
Section 3.4 Counterparts. This Third Supplemental Indenture may
be executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
Section 3.5 Effect of Headings. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 3.6 Severability of Provisions. In case any provision in
this Third Supplemental Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 3.7 Successors and Assigns. All covenants and agreements
in this Third Supplemental Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
Section 3.8 Benefit of Supplemental Indenture. Nothing in this
Third Supplemental Indenture, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent and
their successors hereunder, and the Holders of the Notes, any benefit or any
legal or equitable right, remedy or claim under this Third Supplemental
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
XXXXXX XXXXXXXXXXX
By: ____________________
Name:
Title:
BANK ONE COLUMBUS, N.A., as Trustee
By: ____________________
Name:
Title:
EXHIBIT A
FORM OF NOTE
XXXXXX XXXXXXXXXXX
11 3/4% Senior Notes due 2004
REGISTERED
No. R-___
CUSIP __________________
If this Note is registered in the name of The Depository Trust
Company (the "Depositary") (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) or
its nominee, this Note may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary, unless and
until this Note is exchanged in whole or in part for Notes in
definitive form. Unless this certificate is presented by an
authorized representative of the Depositary 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 requested by an authorized representative of the
Depositary and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL because the registered owner hereof, Cede & Co.,
has an interest herein.
XXXXXX XXXXXXXXXXX, a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor corporation under the Indenture, as
hereinafter defined), for value received hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of $________________ (______________
DOLLARS) on October 15, 2004 in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually on April 15 and
October 15 of each year, commencing April 15, 1997, on said principal sum in
like coin or currency, at the rate per annum specified in the title of this
Note, from the April 15 or October 15, as the case may be, next preceding the
date of this Note to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly provided
for, in which case from the date of this Note, or unless no interest has been
paid or duly provided for on the Notes, in which case from October 4, 1996,
until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after any April 1 or
October 1, as the case may be, and before the following April 15 or October
15, this Note shall bear interest from such April 15 or October 15; provided,
however, that if the Company shall default in the payment of interest due on
such April 15 or October 15 then this Note shall bear interest from the next
preceding April 15 or October 15 to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for on the
Notes, from October 4, 1996. The interest so payable on April 15 or October
15 will (unless such Note has been called for redemption on a Redemption Date
which is prior to such interest payment date and unless such Note has been
designated to be repurchased on a Repurchase Date which is prior to such
interest payment date) be paid to the person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of business on the
applicable Regular Record Date, which shall be the April 1 or October 1
(whether or not a business day) next preceding such April 15 or October 15,
provided that any such interest not punctually paid or duly provided for shall
be payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on, this Note
will be made in immediately available funds upon surrender of the Notes at the
corporate trust office of the Trustee. Interest will be paid by check mailed
to the address of the person entitled thereto as it appears in the Security
Register on the applicable Regular Record Date or, at the option of the
Company, by wire transfer to an account maintained by such person with a bank
located in the United States.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH HEREIN, INCLUDING, WITHOUT LIMITATION, PROVISIONS GIVING THE HOLDER OF
THIS NOTE THE RIGHT TO REQUIRE THE COMPANY TO REPURCHASE THIS NOTE UPON ANY
CHANGE IN CONTROL, ON THE TERMS AND SUBJECT TO THE LIMITATIONS REFERRED TO
HEREIN AND AS MORE FULLY SPECIFIED IN THE INDENTURE. SUCH FURTHER PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF THE STATE OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to herein by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: October__, 1996
XXXXXX XXXXXXXXXXX
By: __________________________
Name:
Title:
Attest:
By: __________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This one of the series of Debt
Securities issued under the
within-mentioned Indenture.
BANK ONE COLUMBUS, N.A.,
as Trustee
By: __________________________
Name:
Title:
XXXXXX XXXXXXXXXXX
11 3/4% Senior Notes due 2004
This Note is one of a duly authorized issue of Notes of the Company
designated as its 11 3/4% Senior Notes due 2004 (herein called the "Notes"),
issued under an Indenture dated as of August 6, 1992 between the Company and
Bank One Columbus, N.A., as trustee (herein called the "Trustee", which term
includes any successor trustee under such Indenture), as amended and
supplemented by the Third Supplemental Indenture dated as of October 4, 1996
(such Indenture and Third Supplemental Indenture, collectively, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, obligations, duties and immunities thereunder of the Company, the
Trustee and the holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered.
If an Event of Default as defined in the Indenture shall have
occurred and be continuing, the principal of and accrued interest on the Notes
of this series may be declared and upon such declaration shall become due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 66-2/3% in the
principal amount of the Notes at the time outstanding, evidenced as in the
Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided, however, that no such
supplemental indenture shall (i) change the fixed maturity of the principal
of, or installment of interest on, any Note, or reduce the principal amount
thereof or the interest thereon or any premium payable upon redemption thereof
or upon exercise of the Repurchase Right with respect thereto, or impair or
affect the right of the holder of any Note to institute suit for the payment
thereof, or make the principal thereof or interest or premium, if any, thereof
payable in any coin or currency other than that provided in the Notes or (ii)
reduce the aforesaid percentage of Notes, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of all Notes then outstanding. It is also provided in the Indenture that,
prior to any declaration accelerating the maturity of the Notes, the holders
of a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of the holders of all of the Notes waive any past
default or Event of Default under the Indenture and its consequences, except a
default in the payment of interest or any premium on or the principal of any
of the Notes. Any such consent or waiver by the holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such holder and upon all future holders and owners of this Note and any Notes
which may be issued in exchange or substitution therefor, irrespective of
whether or not any notation thereof is made upon this Note or such other
Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligations of the Company,
which are absolute and unconditional, to pay the principal of and any premium
and interest on this Note at the place, at the respective times, at the rate
and in the coin or currency herein prescribed or to repurchase this Note upon
a Change in Control as provided in the Indenture.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
The Notes may not be redeemed prior to October 15, 2001, on and
after which date the Notes may be redeemed at the option of the Company as a
whole, or from time to time in part, in multiples of $1,000 only, on any date
prior to maturity, upon mailing a notice of such redemption not less than 30
nor more than 60 days prior to the date fixed for redemption to the holders of
Notes to be redeemed, at the following redemption prices (expressed in
percentages of the principal amount) together in each case with accrued
interest to the date fixed for redemption. If redeemed during the 12-month
period beginning October 15:
Year Percentage
---- ----------
2001 103.917%
2002 101.958%
2003 100.000%
; provided that if the date fixed for redemption is April 15 or October 15,
then the interest payable on such date shall be paid to the holder of record
on the preceding April 1 or October 1.
Upon any Change in Control with respect to the Company, each holder
of Notes shall have the right, at the holder's option, to require the Company
to repurchase all of such holder's Notes, or a portion thereof which is $1,000
or any integral multiple thereof, on the Repurchase Date at a price equal to
101% of the principal amount of the Notes, plus accrued interest, if any, to
the Repurchase Date.
The provisions of the Indenture providing for defeasance of (i) the
entire indebtedness of this Note and (ii) certain restrictive covenants are
applicable to the Note.
As set forth in, and subject to, the provisions of the Indenture,
no holder of any Note will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless (a) such holder
shall have previously given to the Trustee written notice of a continuing
Event of Default with respect to this series, (b) the holders of not less than
25% in principal amount of the Notes then outstanding shall have made written
request to the Trustee to institute such proceeding in respect of such Event
of Default in its own name as Trustee under the Indenture, (c) such holders
shall have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request, (d)
the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such proceeding and (e) the
Trustee shall not have received from the holder of a majority in principal
amount of the Notes then outstanding direction inconsistent with such request
within such 60-day period; provided, however, that such limitations do not
apply to a suit instituted by the holder of a Note for the enforcement of
payment of the principal of, premium, if any, or interest on the Note after
the respective due date expressed herein.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of, premium,
if any, and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder of the Note or
his attorney duly authorized in writing, and thereupon one or more new Notes
of this series of like tenor or authorized denominations and for the same
aggregate principal amount will be issued to the designated transferee or
transferees.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 or any integral multiple thereof.
As provided in the Indenture and subject to certain limitations set forth
therein, Notes of this series are exchangeable for like aggregate principal
amount of Notes of like tenor of a different authorized denomination, as
requested by the holder of the Notes surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Note is registered as the absolute owner of the
Note for all purposes, whether or not this Note be overdue, and none of the
Company, the Trustee or any such agent shall be affected by notice to the
contrary.
Terms used in this Note and defined in the Indenture are used
herein as therein defined.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
__________________________________________________
(Insert assignee's Social Security or Tax I.D. No.)
__________________________________________________
__________________________________________________
(Print or type assignee's name and zip code)
and irrevocably appoint _______________________ agent to transfer this
Note on the books of the Company.
The agent may substitute another to act for him.
Date:__________________
REPURCHASE RIGHT NOTICE
Xxxxxx Xxxxxxxxxxx
Township Line and Union Meeting Roads
Blue Xxxx, Pennsylvania, 19424
Attention:
Bank One Columbus, N.A., as Trustee
Re: 11 3/4% Senior Notes due 2004
Attention:
The undersigned registered holder of the enclosed Note, duly
endorsed for transfer, hereby irrevocably notifies you of the undersigned's
election to require Xxxxxx Xxxxxxxxxxx to purchase on ________________ (the
"Repurchase Date") the enclosed Note, or the portion thereof (which is $1,000
or a multiple thereof) below designated, and directs Xxxxxx Xxxxxxxxxxx to pay
by check to the registered holder of such Note (unless a different name is
indicated below) 101% of the principal amount of such Note plus accrued
interest to the Repurchase Date.
Principal amount to be repurchased (if less than all):
$ ,000
Person (other than registered holder) to whom repurchase price is to be sent:
Dated:
__________________________________
(Name)
__________________________________
__________________________________
(Address)
