1
EXHIBIT 4.__
EXHIBIT A-1
(Face of Note)
================================================================================
FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $543.74,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $456.26, THE ISSUE DATE IS MAY 22, 1998
AND THE YIELD TO MATURITY IS 12 1/2% PER ANNUM.
CUSIP_________
12 1/2% Senior Discount Debentures due 2008
No. ____ $__________
MERCURY ACQUISITION CORPORATION
promises to pay to ___________ or registered assigns, the principal sum of
_____________ Dollars on June 1, 2008.
Interest Payment Dates: June 1 and December 1.
Record Dates: May 15 and November 15.
================================================================================
A-1-1
2
Dated: May 22, 1998
MERCURY ACQUISITION CORPORATION
By:
------------------------------
Name:
Title:
This is one of the
Debentures referred to in the
within-mentioned Indenture:
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
By:
--------------------------------
A-1-2
3
(Back of Note)
12 1/2% Senior Discount Debentures due 2008
[THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS DEBENTURE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL
DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL DEBENTURE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THERMADYNE MFG. LLC AND THERMADYNE CAPITAL CORPORATION.]1
-----------------------
1 This should be included only if the Note is being issued in global form.
A-1-3
4
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Mercury Acquisition Corporation, a Delaware
corporation (the "Issuer"), promises to pay interest on the principal amount at
maturity of this Debenture at 12 1/2% per annum from June 1, 2003 until maturity
and shall pay the Liquidated Damages payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Issuer will pay interest
and Liquidated Damages semi-annually on June 1 and December 1 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). Interest on the Debentures will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from June 1, 2003; provided that if there is no existing Default in the
payment of interest, and if this Debenture is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date; and
provided further that the first Interest Payment Date shall be December 1, 2003.
The Issuer shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer will pay interest on the
Debentures (except defaulted interest) and Liquidated Damages to the Persons who
are registered Holders of Debentures at the close of business on the May 15 or
November 15 next preceding the Interest Payment Date, even if such Debentures
are cancelled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Debentures will be payable as to principal, premium and
Liquidated Damages, if any, and interest at the office of the Paying Agent and
Registrar. Holders of Debentures must surrender their Debentures to the Paying
Agent to collect principal payments, and the Issuer may pay principal and
interest and Liquidated Damages, if any, by check and may mail checks to a
Holder's registered address; provided that all payments with respect to Global
Debentures and Definitive Debentures, the Holders of which have given wire
transfer instructions to the Issuer, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3. PAYING AGENT AND REGISTRAR. Initially, IBJ Xxxxxxxx Bank &
Trust Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuer may change any Paying Agent or Registrar without notice to
any Holder. The Issuer or any of its Subsidiaries may act in any such capacity.
4. INDENTURE The Issuer issued the Debentures under an Indenture,
dated as of May 22, 1998 ("Indenture"), between the Issuer and the Trustee. The
terms of the Debentures include those
A-1-4
5
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb).
The Debentures are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Debenture conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Debentures are obligations of the Issuer initially limited to $174 million in
aggregate principal amount at maturity.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Debentures will not be redeemable at the Issuer's option prior to June 1, 2003.
Thereafter, the Debentures will be subject to redemption at any time at the
option of the Issuer, in whole or in part, upon not less than 30 nor more than
60 days' notice, in cash at the redemption prices (expressed as percentages of
principal amount at maturity) set forth below, plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on June 1 of the years
indicated below:
YEAR PERCENTAGE
---- ----------
2003. . . . . . . . . . . . . . 106.250%
2004. . . . . . . . . . . . . . 104.167%
2005. . . . . . . . . . . . . . 102.083%
2006 and thereafter. . . . . . . 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, on or prior to June 1, 2001, the Issuer may redeem up to 100% of
the aggregate principal amount at maturity of Debentures ever issued under the
Indenture in cash at a redemption price of 112.50% of the Accreted Value
thereof, plus Liquidated Damages, if any, thereon to the redemption date, with
the net cash proceeds of one or more Public Equity Offerings; provided that, in
the event that the Issuer redeems less than 100% of the then outstanding
Debentures, at least 60% of the aggregate principal amount at maturity of the
Debentures ever issued under the Indenture remains outstanding immediately after
the occurrence of any such redemption; and provided further that such redemption
shall occur within 90 days of the date of the closing of any such Public Equity
Offering.
(c) In addition, at any time prior to June 1, 2003, the Issuer may, at
its option upon the occurrence of a Change of Control, redeem the Debentures, in
whole but not in part, upon not less than 30 nor more than 60 days' prior notice
(but in no event may any such redemption occur more than 60 days after the
occurrence of such Change of Control), in cash at a redemption price equal to
(i) the present value of the sum of all the remaining premium and principal
payments that would become due on the Debentures as if the Debentures were to
remain outstanding and be redeemed on June 1, 2003, computed using a discount
rate equal to the Treasury Rate plus 50 basis points, plus (ii) Liquidated
Damages, if any, to the date of redemption.
A-1-5
6
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Issuer is not required to
make mandatory redemption of, or sinking fund payments with respect to, the
Debentures.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Debentures shall have the right to require the Issuer to purchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's
Debentures pursuant to an offer at an offer price in cash equal to 101% of the
aggregate principal amount at maturity thereof, plus any accrued and unpaid
interest and Liquidated Damages, if any, thereon to the date of repurchase (or,
in the case of repurchases of Debentures prior to June 1, 2003, at a purchase
price equal to 101% of the Accreted Value thereof plus Liquidated Damages, if
any, thereon as of the date of redemption). Within 65 days following any Change
of Control, subject to the provisions of the Indenture, the Issuer shall mail a
notice to each Holder of Debentures at such Holder's registered address setting
forth the procedures governing the offer as required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0 million,
the Issuer will be required to make and offer to all Holders of Debentures (an
"Asset Sale Offer") to purchase the maximum principal amount at maturity of
Debentures that may be purchased out of Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount at maturity thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date of purchase (or, in the case of repurchases of Debentures prior to June 1,
2003, at a purchase price equal to 100% of the Accreted Value thereof, plus
Liquidated Damages, if any, thereon as of the date of repurchase), in accordance
with the procedures set forth in the Indenture. Holders of Debentures that are
subject to an offer to purchase will receive an Asset Sale Offer from the Issuer
prior to any related purchase date and may elect to have such Debentures
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse side of this Debenture.
8. NOTICE OF REDEMPTION. Notice of any redemption or offer to
purchase will be mailed at least 30 days but not more than 60 days before the
redemption or purchase date to each Holder of Debentures to be redeemed or
purchased at such Holder's registered address. Debentures in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Debentures held by a Holder are to be redeemed. On and
after the redemption date interest and Liquidated Damages, if any, will cease to
accrue on Debentures or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Debentures may be registered and Debentures
may be exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuer may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Issuer need not exchange or
register the transfer of any Debenture or portion of a Debenture selected for
redemption, except for the unredeemed portion of any Debenture being redeemed in
part. Also, the Issuer need not exchange or register the transfer of any
Debentures for a period of 15 days before a selection of Debentures to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
A-1-6
7
10. PERSONS DEEMED OWNERS. The registered Holder of a Debenture
may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions set forth in the Indenture, the Indenture and the Debentures may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount at maturity of the Debentures then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Debentures), and any existing default or
compliance with any provision of the Indenture or the Debentures may be waived
with the consent of the Holders of a majority in principal amount at maturity of
the then outstanding Debentures (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Debentures). Notwithstanding the foregoing, without the consent of any
Holder of Debentures, the Issuer and the Trustee may amend or supplement the
Indenture or the Debentures to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Debentures in addition to or in place of certificated
Debentures, to provide for the assumption of the Issuer's obligations to Holders
of Debentures in the case of a merger or consolidation or sale of all or
substantially all of the Issuer's assets, to make any change that would provide
any additional rights or benefits to the Holders of Debentures or that does not
materially adversely affect the legal rights under the Indenture of any such
Holder, or to comply with requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act or to
provide for guarantees of the Debentures.
12. DEFAULTS AND REMEDIES.
(a) Events of Default include: (a) default for 30 days in the payment
when due of interest on, or Liquidated Damages with respect to, the Debentures;
(b) default in payment when due of the principal of or premium, if any, on the
Debentures at maturity, upon redemption or otherwise; (c) failure by the Issuer
or any of its Restricted Subsidiaries for 30 days after receipt of notice from
the Trustee or Holders of at least 25% in principal amount at maturity of the
Debentures then outstanding to comply with the provisions of Sections 4.07,
4.09, 4.10, 4.15 and 5.01 of the Indenture; (d) failure by the Issuer for 60
days after notice from the Trustee or the Holders of at least 25% in principal
amount at maturity of the Debentures then outstanding to comply with any of its
other agreements in the Indenture or the Debentures; (e) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Issuer or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Issuer or any of its Restricted Subsidiaries), whether such
Indebtedness or guarantee now exists, or is created after the date of the
Indenture, which default (i) is caused by a failure to pay Indebtedness at its
stated final maturity (after giving effect to any applicable grace period
provided in such Indebtedness) (a "Payment Default") or (ii) results in the
acceleration of such Indebtedness prior to its stated final maturity and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$10.0 million or more; (f) failure by the Issuer or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of $10.0 million (net
of any amounts with respect to which a reputable and creditworthy insurance
company has acknowledged liability in writing), which judgments are not paid,
discharged or stayed for a period of 60 days; and (g) certain events of
bankruptcy or insolvency with respect to the Issuer or any of its Restricted
Subsidiaries that is a Significant Subsidiary. If any Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount at maturity of the then outstanding Debentures may declare all the
Debentures to be due and payable immediately; provided that, so long as any
Indebtedness permitted to be incurred pursuant to the New Credit Facility shall
be outstanding, such acceleration shall not be effective until the earlier of
(a) an acceleration of any such Indebtedness under the New Credit Facility or
(b) five business days after receipt by the Issuer and the administrative agent
under the New Credit Facility
A-1-7
8
of written notice of such acceleration. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency with respect to the Issuer or any of its Restricted Subsidiaries that
is a Significant Subsidiary, all outstanding Debentures will become due and
payable without further action or notice.
(b) In the event of a declaration of acceleration of the Debentures
because an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in clause (e) of the preceding
paragraph, the declaration of acceleration of the Debentures shall be
automatically annulled if the holders of any Indebtedness described in clause
(e) have rescinded the declaration of acceleration in respect of such
Indebtedness within 30 days of the date of such declaration and if (i) the
annulment of the acceleration of the Debentures would not conflict with any
judgment or decree of a court of competent jurisdiction and (ii) all existing
Events of Default, except non-payment of principal or interest on the Debentures
that became due solely because of the acceleration of the Debentures, have been
cured or waived.
15. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL DEBENTURES.
In addition to the rights provided to Holders of Debentures under the Indenture,
Holders of Restricted Global Debentures shall have the rights set forth in the
Registration Rights Agreement, dated as of May 22, 1998, among the Issuer and
the parties named on the signature pages thereof (the "Registration Rights
Agreement").
16. TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Issuer or its Affiliates, and may otherwise deal with the
Issuer or its Affiliates, as if it were not the Trustee.
17. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Issuer, as such, shall not have any
liability for any obligations of the Issuer under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
18. AUTHENTICATION. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
19. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has caused
CUSIP numbers to be printed on the Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
A-1-8
9
The Issuer will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Mercury Acquisition Corporation
x/x XXX Merchant Banking Partners
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
A-1-9
10
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign and
transfer this Debenture to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Debenture on the books of the Issuer. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
-------------
Your Signature:
--------------------------------------
(Sign exactly as your name appears on the
face of this Debenture)
Signature Guarantee:
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee.
A-1-10
11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Issuer
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Debenture purchased by
the Issuer pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: $________
Date:
-------------
Your Signature:
--------------------------------------
(Sign exactly as your name appears on the
Debenture)
Tax Identification No:
-------------------------------
Signature Guarantee:
Signature must be guaranteed by a participant in a
recognized signature guaranty medallion program or
other signature guarantor acceptable to the Trustee.
A-1-11
12
[SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL DEBENTURE]2
[The following exchanges of a part of this Global Debenture for an
interest in another Global Debenture or for a Definitive Debenture, or exchanges
of a part of another Global Debenture or Definitive Debenture for an interest in
this Global Debenture, have been made:
Principal Amount of Signature of
Amount of decrease Amount of increase this Global authorized
in Principal Amount in Principal Amount Debenture following officer of Trustee
of this Global of this Global such decrease or Debenture
Date of Exchange Debenture Debenture (or increase) Custodian]
---------------- ------------------- ------------------- ------------------- ------------------
------------------
2 This should be included only if the Note is being issued in global form.
A-1-12
