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EXHIBIT 4.1B
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XXXXXXX COMPUTER SERVICES, INC.
AND
THE BANK OF NEW YORK, AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 15, 1999
to
INDENTURE
Dated as of January 15, 1999
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of January 15, 1999 (this
"Supplemental Indenture") between XXXXXXX COMPUTER SERVICES, INC., a corporation
duly organized and validly existing under the laws of the State of Delaware (the
"Company"), and The Bank of New York, a New York banking corporation, as trustee
(the "Trustee"). Capitalized terms not defined herein have the meanings
specified in the Indenture (as hereinafter defined).
RECITALS
The Company and the Trustee have heretofore executed and delivered an
Indenture dated as of January 15, 1999 (the "Indenture"), which provides, inter
alia, for the issuance from time to time by the Company of Securities in one or
more Series.
This Supplemental Indenture establishes a first Series of Securities to
be issuable under the Indenture.
All acts and proceedings necessary to make this Supplemental Indenture
a valid and binding instrument in accordance with its terms for the purposes
herein set forth have been done and performed, and the execution and delivery of
this Supplemental Indenture have in all respects been duly authorized.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Securities issued under the
Indenture.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. With respect to the Notes (as hereinafter
defined), the definitions in the Indenture of "Affiliate," "Debt," "Default,"
"Person" and "Subsidiary" are hereby deleted in their entirety and the following
definitions shall apply:
"Affiliate" means, at any time, and with respect to any Person: (a) any
other Person that at such time, directly or indirectly, through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning
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or holding, directly or indirectly, 10% or more of any class of voting or equity
interests of the Company or any Subsidiary or any Person of which the Company
and its Subsidiaries beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity interests. As used in
this definition, "Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Company.
"Attributable Value" in respect of any sale and leaseback transaction
means, as of the date of any determination thereof, the greater of (a) the fair
market value of the property or assets which is or are the subject of such sale
and leaseback transaction (as reasonably determined in good faith by the Board
of Directors at or about the time of the consummation of such sale and leaseback
transaction) and (b) the aggregate amount of Rentals due and to become due
(discounted from the respective due dates thereof at the interest rate implicit
in such Rentals and otherwise in accordance with GAAP) under the lease relating
to such sale and leaseback transaction.
"Called Principal" means, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to Section 2.06 of the First
Supplemental Indenture or has become or is declared to be immediately due and
payable under Section 6.2 of this Indenture, as the context requires.
"Capital Lease" means, at any time, a lease with respect to which the
lessee is required concurrently to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Stock" means and includes any and all shares, interests,
participations or other equivalents (however designated) of ownership in a
corporation or other Person.
"Change in Control" shall be deemed to have occurred if any person (as
such term is used in Section 13(d) and Section 14(d)(2) of the Exchange Act) or
related persons constituting a group (as such term is used in Rule 13d-5 under
the Exchange Act):
(a) becomes the "beneficial owner" (as such term is used in
Rule 13d-3 under the Exchange Act), directly or indirectly, of more
than 50% of the total voting power of all classes then outstanding of
the Company's voting Capital Stock, or
(b) acquires after the date of the original issuance of the
Notes (i) the power to elect, appoint or cause the election or
appointment of at least a majority of the members of the Board of
Directors through beneficial ownership of the Capital Stock of the
Company or (ii) all or substantially all of the properties and assets
of the Company.
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"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Consolidated Indebtedness" means all Indebtedness of the Company and
its Restricted Subsidiaries, including, without duplication, Exempted Debt,
determined on a consolidated basis in accordance with GAAP after eliminating all
intercompany items.
"Consolidated Net Assets" means the total consolidated assets of the
Company and its Restricted Subsidiaries, less all current liabilities of the
Company and its Restricted Subsidiaries (excluding any Indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company and its Restricted Subsidiaries
which by its terms is renewable or extendable beyond 12 months from such date at
the option of the borrower).
"Consolidated Net Income" for any period means the gross revenues of
the Company and its Restricted Subsidiaries for such period, less all expenses
and other proper charges (including taxes on income), determined on a
consolidated basis in accordance with GAAP after eliminating earnings or losses
attributable to outstanding Minority Interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of
investments or fixed or capital assets other than in the ordinary
course of business, and any taxes on such excluded gains and any tax
deductions or credits on account of such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Restricted Subsidiary
accrued prior to the date it became a Restricted Subsidiary;
(d) net earnings and losses of any Person (other than a
Restricted Subsidiary), substantially all the assets of which have been
acquired in any manner by the Company or any Restricted Subsidiary,
realized by such Person prior to the date of such acquisition;
(e) net earnings and losses of any Person (other than a
Restricted Subsidiary) with which the Company or a Restricted
Subsidiary shall have consolidated or which shall have merged into or
with the Company or a Restricted Subsidiary, realized by such Person
prior to the date of such consolidation or merger;
(f) net earnings of any business entity (other than a
Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest unless such net earnings shall
have actually been received by the Company or such Restricted
Subsidiary in the form of cash distributions;
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(g) any portion of the net earnings of any Restricted
Subsidiary which for any reason is unavailable for payment of dividends
to the Company or any other Restricted Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(i) any deferred or other credit representing any excess of
the equity in any Subsidiary at the date of acquisition thereof over
the amount invested in such Subsidiary;
(j) any gain arising from the acquisition of any securities
of the Company or any Restricted Subsidiary;
(k) any reversal of any contingency reserve, except to the
extent that provision for such contingency reserve shall have been made
from income arising during such period; and
(l) any other extraordinary gain or loss.
"Consolidated Net Worth" means the amount which, at any date of
determination, in conformity with GAAP consistently applied, would be set forth
under the caption "stockholders' equity" (or any like caption) on the
consolidated balance sheet of the Company and its Restricted Subsidiaries.
"Consolidated Total Capitalization" means, as of the date of any
determination thereof, the sum of Consolidated Indebtedness plus Consolidated
Net Worth.
"Control Event" means:
(a) the execution by the Company or any of its Restricted
Subsidiaries of any agreement or letter of intent with respect to any
proposed transaction or event or series of transactions or events
which, individually or in the aggregate, could reasonably be expected
to result in a Change in Control;
(b) the execution of any written agreement which, when fully
performed by the parties thereto, would result in a Change in Control;
or
(c) the making of any written offer by any person (as such
term is used in Section 13(d) and Section 14(d)(2) of the Exchange Act)
or related persons constituting a group (as such term is used in Rule
13d-5 under the Exchange Act) to the holders of the common stock of the
Company, which offer, if accepted by the requisite number of such
holders, would result in a Change in Control.
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"Credit Facility" means the Credit Agreement dated October 31, 1997
among the Company, various lenders and Bank of America NT & SA, as agent for
such lenders, as such agreement may be amended (including any amendment and
restatement thereof), supplemented, replaced, refinanced or otherwise modified
from time to time.
"Default" means an event or condition the occurrence or existence of
which would, with the lapse of time or the giving of notice or both, become an
Event of Default.
"Discounted Value" means, with respect to the Called Principal of any
Note, the amount obtained by discounting all Remaining Scheduled Payments with
respect to such Called Principal from their respective scheduled due dates to
the Settlement Date with respect to such Called Principal, in accordance with
accepted financial practice and at a discount factor (applied on the same
periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes, air emissions
and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"Exempted Debt" means the following as of any date of determination:
(a) Indebtedness of the Company secured by Liens incurred after the date of the
original issuance of the Notes, other than Indebtedness secured by Liens
permitted by paragraph (b) of Section 4.13 of this Indenture; (b) the
Attributable Value in respect of sale and leaseback transactions entered into by
the Company and its Restricted Subsidiaries after the date of the original
issuance of the Notes, other than sale and leaseback transactions permitted by
paragraph (a) of Section 4.14 of this Indenture; and (c) Indebtedness of the
Company's Restricted Subsidiaries, other than Indebtedness owing to the Company
or a Wholly-Owned Restricted Subsidiary.
"First Supplemental Indenture" means the First Supplemental Indenture
dated as of January 15, 1999 to this Indenture.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Guaranty" means, with respect to any Person, any obligation (except
the endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing any
Indebtedness, dividend or other obligation of
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any other Person in any manner, whether directly or indirectly, including
(without limitation) obligations incurred through an agreement, contingent or
otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such Indebtedness or obligation or (ii) to maintain any
working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or
obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation of the ability of any other Person to make
payment of such Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the obligor under
any Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Indebtedness" with respect to any Person means, at any time, without
duplication:
(a) its liabilities for borrowed money and its redemption
obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including all liabilities created
or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities);
(e) all its liabilities in respect of financial letters of
credit or instruments serving a similar function issued or accepted for
its account by banks and other financial institutions (whether or not
representing obligations for borrowed money);
(f) Swaps of such Person; and
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(g) any Guaranty of such Person with respect to liabilities
of a type described in any of clauses (a) through (f) above.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (g) above to the extent such Person
remains legally liable in respect thereof, notwithstanding that any such
obligation is deemed to be extinguished under GAAP. Notwithstanding the
foregoing, in no event shall "Indebtedness" include any obligation or liability
of the Company or any of its Subsidiaries arising in connection with the sale or
transfer by the Company or any of its Subsidiaries to any Person of accounts
receivable or any assets related thereto.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien or
other security arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Make-Whole Amount" means, with respect to any Note, an amount equal to
the excess, if any, of the Discounted Value of the Remaining Scheduled Payments
with respect to the Called Principal of such Note over the amount of such Called
Principal. The Make-Whole Amount may in no event be less than zero.
"Material Adverse Effect" means a material adverse effect on: (a) the
business, operations, affairs, financial condition, assets or properties of the
Company and its Subsidiaries taken as a whole; (b) the ability of the Company to
perform its obligations under the Indenture, this Supplemental Indenture and the
Notes; or (c) the validity or enforceability of the Indenture, this Supplemental
Indenture or the Notes.
"Minority Interests" means any shares of stock of any class of a
Restricted Subsidiary (other than directors' qualifying shares as required by
law) that are not owned by the Company and/or one or more of its Restricted
Subsidiaries.
"Notes," "6.92% Notes" and "7.26% Notes" are defined in Section 2.01 of
the First Supplemental Indenture.
"Outstanding Notes" means, subject to certain exceptions, all Notes
issued under this Indenture, except those theretofore canceled by the Trustee or
delivered to it for cancellation, paid in full or in respect of which substitute
Notes have been authenticated and delivered by the Trustee.
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"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
"Preferred Stock" means any class of capital stock of a corporation
that is preferred over any other class of capital stock of such corporation as
to the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Proposed Prepayment Date" is defined in Section 2.07(c) of the First
Supplemental Indenture.
"Purchase Agreements" means the several Purchase Agreements dated as of
January 15, 1999 between the Company and the institutions named in Schedule A
thereto, respectively, providing for the issue and sale of the Notes.
"Reinvestment Yield" means, with respect to the Called Principal of any
Note, .50% over the yield to maturity implied by (a) the yields reported, as of
10:00 A.M. (New York City time) on the second Business Day preceding the
Settlement Date with respect to such Called Principal, on the display designated
as "Page USD" of the Bloomberg Financial Markets Services Screen (or, if not
available, any other nationally recognized trading screen reporting on-line
intraday trading in U.S. Treasury securities) for actively traded on-the-run
U.S. Treasury securities having a maturity equal to the Remaining Average Life
of such Called Principal as of such Settlement Date, or (b) if such yields are
not reported as of such time or the yields reported as of such time are not
ascertainable, the Treasury Constant Maturity Series Yields reported, for the
latest day for which such yields have been so reported as of the second Business
Day preceding the Settlement Date with respect to such Called Principal, in
Federal Reserve Statistical Release H.15(519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield will be determined, if necessary, by (a)
converting U.S. Treasury xxxx quotations to bond-equivalent yields in accordance
with accepted financial practice and (b) interpolating linearly between (i) the
actively traded on-the-run U.S. Treasury security with the maturity closest to
and greater than such Remaining Average Life and (ii) the actively traded
on-the-run U.S. Treasury security with the maturity closest to and less than
such Remaining Average Life. For the purposes of any determination of
"Reinvestment Yield," "Business Day" shall mean a Business Day in The City of
New York.
"Remaining Average Life" means, with respect to the Called Principal of
any Note, the number of years (calculated to the nearest one-twelfth year) that
will elapse between the Settlement Date with respect to such Called Principal
and the scheduled due date of the principal.
"Remaining Scheduled Payments" means, with respect to the Called
Principal of any Note, all payments of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such Called
Principal if no payment of such Called Principal
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were made prior to its scheduled due date. However, if the Settlement Date is
not a date on which interest payments are due to be made under the terms of the
Notes, then the amount of the next succeeding scheduled interest payment will be
reduced by the amount of interest accrued to the Settlement Date and required to
be paid on the Settlement Date because of the optional prepayment of the Called
Principal or because of an event of acceleration described in Section 6.2 of
this Indenture, as the context requires.
"Rentals" means and includes, as of the date of any determination
thereof, all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Restricted Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be exclusive of
any amounts required to be paid by the Company or a Restricted Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Responsible Company Officer" means any Senior Financial Officer and
any other officer of the Company with responsibility for the administration of
the relevant portion of this Indenture.
"Restricted Subsidiary" means any Subsidiary of the Company as of the
date of the First Supplemental Indenture and each Subsidiary thereafter created
or acquired, unless expressly excluded by resolution of the Board of Directors
before, or within 120 days following, such creation or acquisition. Unless the
context otherwise clearly requires, any reference to a "Restricted Subsidiary"
is a reference to a Restricted Subsidiary of the Company.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Settlement Date" means, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
Section 2.06 of the First Supplemental Indenture or has become or is declared to
be immediately due and payable pursuant an event of acceleration described in
Section 6.2 of this Indenture, as the context requires.
"Subsidiary" means, as to any Person, any corporation, association or
other business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if more
than a 50% interest in the profits or capital thereof is owned by such Person or
one or more of its Subsidiaries or such Person and one or
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more of its Subsidiaries (unless such partnership can and does ordinarily take
major business actions without the prior approval of such Person or one or more
of its Subsidiaries). Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of the Company.
"Swaps" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Indenture, the amount of
the obligation under any Swap shall be the amount determined in respect thereof
as of the end of the then most recently ended fiscal quarter of such Person,
based on the assumption that such Swap had terminated at the end of such fiscal
quarter and in making such determination, if any agreement relating to such Swap
provides for the netting of amounts payable by and to such Person thereunder or
if any such agreement provides for the simultaneous payment of amounts by and to
such Person, then, in each such case, the amount of such obligation shall be the
net amount so determined.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Wholly-Owned Restricted Subsidiary" means, at any time, any Restricted
Subsidiary all of the shares of voting Capital Stock and other voting equity
interests (except directors' qualifying shares) and other equity interests of
which are owned by the Company and/or the Company's other Wholly-Owned
Restricted Subsidiaries."
ARTICLE II
ESTABLISHMENT OF FIRST SERIES OF SECURITIES
SECTION 2.01. Establishment of Limited Series of Notes. There is
hereby established a first series of Securities to be designated as the "6.92% -
7.26% Senior Notes" (the "Notes"). The Notes shall be limited to $65,000,000
aggregate principal amount of 6.92% Senior Notes due January 15, 2006 (the
"6.92% Notes") and $135,000,000 aggregate principal amount of 7.26% Senior Notes
due January 15, 2009 (the "7.26% Notes"), except for Notes authenticated and
delivered upon registration of transfer of, in exchange for or in lieu of other
Notes pursuant to Sections 2.7, 2.8, 3.6 or 9.6 of the Indenture. The price at
which the Notes shall be issued is 100% of the principal amount thereof.
SECTION 2.02. Maturity Dates. The principal of the 6.92% Notes
shall be payable on January 15, 2006, and the principal of the 7.26% Notes shall
be payable on January 15, 2009.
SECTION 2.03. Interest Rates and Payment Dates. The 6.92% Notes
shall bear interest at the rate of 6.92% per annum;
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and the 7.26% Notes shall bear interest at the rate of 7.26% per annum. Such
interest shall accrue from January 15, 1999 (or from the most recent interest
payment date to which interest has been paid or provided for). The interest
payment dates on which such interest shall be payable shall be April 1 and
October 1 in each year, commencing April 1, 1999, and at maturity; and the
regular record dates for the interest payable on such interest payment dates
shall be March 15 and September 15 (whether or not a Business Day),
respectively. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.04. Place of Payment. (a) Subject to paragraph (b) of
this Section 2.04, payments of principal, Make Whole Amount, if any, and
interest becoming due and payable on the Notes shall be made at the Corporate
Trust Office.
(b) So long as an original purchaser or its nominee shall be the
Holder of any Note, notwithstanding anything contained in the Indenture, this
Supplemental Indenture or the Notes, the Company will cause all sums becoming
due on such Note for principal, Make-Whole Amount, if any, and interest to be
made by the method and at the address specified for such purpose below such
purchaser's name in Schedule A to the Purchase Agreements, or by such other
method or at such other address as such Holder shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except that
upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, each original
purchaser shall surrender such Note for cancellation, reasonably promptly after
any such request, to the Company at the Corporate Trust Office. Prior to any
sale or other disposition of any Note held by an original purchaser of the Notes
or its nominee, such purchaser will, at its election, either endorse thereon the
amount of principal paid thereon and the last date to which interest has been
paid thereon or surrender such Note to the Trustee in exchange for a new Note or
Notes pursuant to Section 2.7 or 3.6 of the Indenture.
SECTION 2.05. No Mandatory Prepayments. The Notes shall not be
entitled to the benefit of any sinking fund or analogous mandatory redemption
provisions.
SECTION 2.06. Optional Prepayments. (a) The Company may, at its
option, prepay at any time all, or from time to time any part of, the Notes, in
an amount not less than 10% of the aggregate principal amount of the Outstanding
Notes in the case of a partial prepayment, at 100% of the principal amount so
prepaid, together with interest accrued thereon to the date of such prepayment,
plus the Make-Whole Amount determined for the prepayment date with respect to
the principal amount to be prepaid. The Company will give each holder of the
Notes written notice of each optional prepayment not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment.
(b) In the case of each partial prepayment of the Notes, the
principal amount of the Notes to be prepaid shall be allocated among all of the
Outstanding Notes at the time in
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proportion, as nearly as practicable, to the respective unpaid principal amounts
thereof not theretofore called for prepayment.
(c) In the case of each prepayment of the Notes, the principal
amount of each Note to be prepaid shall mature and become due and payable on the
date fixed for such prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount, if any. From and
after such date, unless the Company shall fail to pay such principal amount when
so due and payable, together with interest and the Make-Whole Amount, if any, as
aforesaid, interest on such principal amount shall cease to accrue.
(d) Except for Section 3.6, Article III of the Indenture shall
not apply to the Notes.
SECTION 2.07. Option to Tender after Change in Control. (a) The
Company will, within five Business Days after any Responsible Company Officer
has actual knowledge of the occurrence of any Change in Control or Control
Event, give written notice of such Change in Control or Control Event to each
Holder of the Notes unless notice in respect of such Change in Control (or the
Change in Control contemplated by such Control Event) shall have been given
pursuant to paragraph (b) of this Section 2.07. If a Change in Control has
occurred, such notice shall contain and constitute an offer to prepay the Notes
as described in paragraph (c) of this Section 2.07 and shall be accompanied by
the certificate described in paragraph (g) of this Section 2.07.
(b) The Company will not take any action that consummates or
finalizes a Change in Control unless (i) at least 30 days prior to such action
it shall have given to each Holder of the Notes written notice containing and
constituting an offer to prepay the Notes as described in paragraph (c) of this
Section 2.07, accompanied by the certificate described in paragraph (g) of this
Section 2.07, and (ii) contemporaneously with such action, it prepays all of the
Notes required to be prepaid in accordance with this Section 2.07.
(c) The offer to prepay the Notes contemplated by paragraphs (a)
and (b) of this Section 2.07 shall be an offer to prepay, in accordance with and
subject to this Section 2.07, all, but not less than all, of the Notes held by
each Holder on a date specified in such offer (the "Proposed Prepayment Date").
If such Proposed Prepayment Date is in connection with an offer contemplated by
paragraph (a) of this Section 2.07, such date shall be not less than 30 days and
not more than 120 days after the date of such offer (if the Proposed Prepayment
Date shall not be specified in such offer, the Proposed Prepayment Date shall be
the first Business Day after the 45th day after the date of such offer).
(d) A Holder of the Notes may accept an offer to prepay made
pursuant to this Section 2.07 by causing a notice of such acceptance to be
delivered to the Company not later than 15 days after the receipt by such Holder
of such offer. A failure by a Holder of the Notes to respond within such 15-day
period to an offer to prepay made pursuant to this Section 2.07 shall be deemed
to constitute a rejection of such offer by such Holder.
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(e) Prepayment of the Notes to be prepaid pursuant to this
Section 2.07 shall be at 100% of the principal amount of such Notes, together
with interest on such Notes accrued to the date of prepayment, but without any
Make-Whole Amount or other premium. The prepayment shall be made on the Proposed
Prepayment Date, except as provided in paragraph (f) of this Section 2.07.
(f) The obligation of the Company to prepay the Notes pursuant
to the offers required by paragraph (c) and accepted in accordance with
paragraph (d) of this Section 2.07 is subject to the occurrence of the Change in
Control in respect of which such offers and acceptances shall have been made. In
the event that such Change in Control shall not have occurred on the Proposed
Prepayment Date in respect thereof, the prepayment shall be deferred until, and
shall be made on, the date on which such Change in Control shall occur. The
Company shall keep each Holder of the Notes reasonably and timely informed of
(i) any such deferral of the date of prepayment; (ii) the date on which such
Change in Control and such prepayment are expected to occur; and (iii) any
determination by the Company that efforts to effect such Change in Control have
ceased or been abandoned (in which case the offers and acceptances made pursuant
to this Section 2.07 in respect of such Change in Control shall be deemed
rescinded).
(g) Each offer to repay the Notes pursuant to this Section 2.07
shall be accompanied by a certificate, executed by a Senior Financial Officer
and dated the date of such offer, specifying: (i) the Proposed Prepayment Date;
(ii) that such offer is made pursuant to this Section 2.07; (iii) the principal
amount of each Note offered to be prepaid; (iv) the interest that would be due
on each Note offered to be prepaid, accrued to the Proposed Prepayment Date; (v)
that the conditions of this Section 2.07 have been fulfilled; and (vi) the
nature and date or proposed date of the Change in Control.
(h) All calculations contemplated in this Section 2.07 involving
the Capital Stock of any Person shall be made with the assumption that all
convertible securities of such Person then outstanding and all convertible
securities issuable upon the exercise of any warrants, options and other rights
then outstanding were converted at such time and that all options, warrants and
similar rights to acquire shares of Capital Stock of such Person were exercised
at such time.
SECTION 2.08. Denominations. The Notes shall be originally
issued in denominations of $300,000 and multiples of $50,000 in excess thereof.
The Notes shall be transferable only in denominations of $300,000 and in
multiples of $50,000; provided that if necessary to enable the registration of
transfer by a Holder of its entire holding of the Notes, one Note may be in a
denomination of less than $300,000.
SECTION 2.09. Form of Notes. The Notes shall be issuable only in
fully registered form and shall not be issued as Global Securities. The form
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of the 6.92% Notes is attached hereto as Annex A. The form of the 7.26% Notes is
attached hereto as Annex B. Any terms of the 6.92% Notes and of the 7.26% Notes
set forth in Annex A and Annex B, respectively, which are not expressly stated
in this Article II are incorporated herein by reference.
SECTION 2.10. Notes Payable in Dollars. The Notes shall be
denominated in Dollars. Payment of the principal of, and the Make-Whole Amount,
if any, and interest on, the Notes shall not be payable in a currency or
currency unit other than Dollars.
SECTION 2.11. Restrictions on Transfers. The Notes are subject
to the restrictions on transfer set forth in the second paragraph of Section 2.7
of the Indenture and Section 8.4 of the Purchase Agreements.
SECTION 2.12. Events of Default. The additions to and changes in
the Events of Default set forth in the Indenture with respect to the Notes and
any change in the right of the Trustee or the requisite Holders of the Notes to
declare the principal amount thereof due and payable are set forth in Article
IV.
SECTION 2.13. Covenants. The additions to and changes in the
covenants set forth in Articles IV and V of the Indenture are set forth in
Article III.
SECTION 2.14. No Defeasance. The provisions of Sections 8.3 and
8.4 of the Indenture shall not apply to the Notes.
SECTION 2.15. Deemed Representations and Agreement. Any
transferee of a Note, by its acceptance of a Note registered in its name, or in
the name of its nominee, shall be deemed to have made the representations set
forth in Sections 6.1 and 6.2 of the Purchase Agreements, on and as of the date
of such acceptance, and to have agreed to the confidentiality provisions set
forth in Section 15 of the Purchase Agreements.
ARTICLE III
COVENANTS
SECTION 3.01. Amendment of Section 4.3 of the Indenture. With
respect to the Notes, Section 4.3 of the Indenture is hereby amended by deleting
the number "120" in the first line thereof and substituting the number "105."
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SECTION 3.02. Restatement of Sections 4.5, 4.6 and 5.1 of the
Indenture; Additional Covenants. With respect to the Notes, Sections 4.5, 4.6
and 5.1 of the Indenture are hereby deleted in their entirety and the following
Sections are substituted therefor:
Section 4.5. Corporate Existence, Etc. Subject to Section 5.1,
the Company will at all times preserve and keep in full force and effect its
Corporate existence. The Company will at all times preserve and keep in full
force and effect the corporate existence of each of its Restricted Subsidiaries
(unless merged into the Company or a Restricted Subsidiary) and all rights and
franchises of the Company and its Restricted Subsidiaries unless, in the good
faith judgment of the Company, the termination of or failure to preserve and
keep in full force and effect such corporate existence, right or franchise would
not, individually or in the aggregate, have a Material Adverse Effect.
Section 4.6. Payment of Taxes and Claims. The Company will, and
will cause each of its Restricted Subsidiaries to, file all tax returns required
to be filed in any jurisdiction and to pay and discharge all taxes shown to be
due and payable on such returns and all other taxes, assessments, governmental
charges or levies imposed on them or any of their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and payable
and before they have become delinquent, and all claims for which sums have
become due and payable that have or might become a Lien on properties or assets
of the Company or any Restricted Subsidiary; provided, however, that neither the
Company nor any Restricted Subsidiary need pay any such tax, assessment,
governmental charge, levy or claim if (a) the amount, applicability or validity
thereof is contested by the Company or such Restricted Subsidiary on a timely
basis in good faith and in appropriate proceedings, and the Company or a
Restricted Subsidiary has established adequate reserves therefor in accordance
with GAAP on the books of the Company or such Restricted Subsidiary or (b) the
nonpayment of all such taxes and assessments in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
Section 4.7. Compliance with Law. The Company will, and will
cause each of its Restricted Subsidiaries to, comply with all laws, ordinances
or governmental rules or regulations to which each of them is subject,
including, without limitation, ERISA and all Environmental Laws, and will obtain
and maintain in effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, in each case to the
extent necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 4.8. Insurance. The Company will, and will cause each of
its Restricted Subsidiaries to, maintain, with financially sound and reputable
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insurers, insurance with respect to their respective properties and businesses
against such casualties and contingencies, of such types, on such terms and in
such amounts (including deductibles, co-insurance and self-insurance) as is
customary in the case of entities of established reputations and of similar size
engaged in the same or similar businesses and similarly situated.
Section 4.9. Maintenance of Properties. The Company will, and will
cause each of its Restricted Subsidiaries to, maintain and keep, or cause to be
maintained and kept, their respective properties in good repair, working order
and condition (other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times; provided,
however, that this covenant shall not prevent the Company or any Restricted
Subsidiary from discontinuing the operation and the maintenance of any of its
properties if such discontinuance is desirable in the conduct of its business
and the Company has concluded that such discontinuance would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.10. Notes to Rank Pari Passu. The Company will, and will
cause each of its Restricted Subsidiaries to, execute all such documents and
take such other actions in order to assure that at all times the Notes shall
rank in right of payment either pari passu or senior to all other Indebtedness
of the Company, except for Indebtedness which is preferred as a result of being
secured (but then only to the extent of such security).
Section 4.11. Consolidated Net Worth. The Company will at all times
keep and maintain Consolidated Net Worth in an amount not less than $383,231,100
plus (b) 25% of Consolidated Net Income computed on a cumulative basis for each
of its elapsed fiscal years ending after July 31, 1998; provided, however, that
notwithstanding that Consolidated Net Income for any such elapsed fiscal year
may be a deficit figure, no reduction as a result thereof shall be made in the
amount of Consolidated Net Worth to be maintained pursuant hereto.
Section 4.12. Limitation on Incurrence of Indebtedness. (a) The Company
will not, and will not permit any Restricted Subsidiary to, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to any Indebtedness, except:
(1) Indebtedness evidenced by the Notes;
(2) additional Indebtedness of the Company or any Restricted Subsidiary
(including, without limitation, all Indebtedness borrowed or drawn from
time to time under and pursuant to the Credit Facility and any
Indebtedness permitted under Section 4.13 and all Attributable Value
permitted under Section 4.14) if at the time of the creation,
incurrence, assumption or guarantee thereof, or otherwise becoming
liable thereon, and immediately after giving effect thereto, to the
application of the proceeds
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thereof and to the concurrent retirement of any other Indebtedness of
the Company and its Restricted Subsidiaries: (i) Consolidated
Indebtedness shall not exceed 65% of Consolidated Total Capitalization;
and (ii) no Default or Event of Default shall exist; and
(3) any extension, renewal or refunding of any Indebtedness of the
Company and its Restricted Subsidiaries outstanding on the date of
the original issuance of the Notes (including, without limitation,
Indebtedness outstanding under the Credit Facility) or any other
Indebtedness thereafter created, assumed, guaranteed or otherwise
incurred as permitted by this Section 4.12; provided, however, that:
(i) any such extension, renewal or refunding shall not increase the
principal amount of the Indebtedness outstanding at the date of such
extension, renewal or refunding; and (ii) at the time of any such
extension, renewal or refunding, and after giving effect thereto, to
the application of the proceeds thereof and to the concurrent
retirement of any other Indebtedness of the Company and its Restricted
Subsidiaries, no Default or Event of Default shall exist.
(b) Without limiting paragraph (a) of this Section 4.12, the Company
shall not permit any Restricted Subsidiary to create, incur, issue, assume,
guarantee or otherwise become or be directly or indirectly liable with respect
to any Indebtedness unless, in each case, immediately after giving effect
thereto, to the application of the proceeds thereof and to the concurrent
retirement of any other Indebtedness of the Company and its Restricted
Subsidiaries, the sum of: (1) the aggregate principal amount of all outstanding
Indebtedness secured by Liens permitted under paragraph (c) of Section 4.13, (2)
the aggregate Attributable Value of sale and leaseback transactions permitted
under paragraph (b) of Section 4.14 and (3) the aggregate principal amount of
all outstanding unsecured Indebtedness owing by all Restricted Subsidiaries
(excluding Indebtedness owing to the Company or any Wholly-Owned Restricted
Subsidiary) shall not exceed 15% of Consolidated Net Assets.
For the purposes of this Section 4.12, any Indebtedness (i)
which is assumed, extended, renewed or refunded shall be deemed to have been
incurred when assumed, extended, renewed or refunded and (ii) of a Person
outstanding at the time it shall become a Restricted Subsidiary, or at the time
all or substantially all of its assets shall be acquired by the Company or any
Restricted Subsidiary, shall be deemed to have been incurred at such time.
Section 4.13 Limitation on Secured Debt. (a) The Company will
not, and will not permit any Restricted Subsidiary to, create, incur, issue,
assume or guarantee any Indebtedness secured by a Lien of any kind unless such
Lien is created or incurred as permitted by paragraph (b) or (c) of this Section
4.13.
(b) The prohibition contained in paragraph (a) of this Section
4.13 shall not apply to:
(1) Liens existing on the date of the original issuance of
the Notes;
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(2) Liens created or incurred by the Company or any
Restricted Subsidiary upon any property (including, without limitation,
Capital Stock or evidences of Indebtedness issued by any Restricted
Subsidiary), which property is acquired after the date of the original
issuance of the Notes; provided, however, that immediately after the
creation or incurrence of any such Lien: (i) no Default or Event of
Default shall exist; (ii) such Lien shall attach solely to property
acquired, purchased or created after the date of the original issuance
of the Notes; (iii) such Lien shall have been created or incurred at
the time of or within 12 months after the acquisition, purchase or
creation, as the case may be, of such property; (iv) the aggregate
amount of all Indebtedness secured by any such Lien shall not exceed
100% of the cost of acquisition, purchase or creation, as the case may
be, of such property; and (v) the Indebtedness secured by such Lien
shall be permitted by clause (a)(2) of Section 4.12;
(3) Liens affecting the property of a Person at the time it
becomes a Restricted Subsidiary, or at the time it is merged into or
consolidated with the Company or a Restricted Subsidiary, or at the
time all or substantially all of its property is acquired by the
Company or a Restricted Subsidiary; provided, however, that immediately
after the creation or incurrence of any such Lien: (i) no Default or
Event of Default shall exist; (ii) such Lien shall extend solely to the
property so acquired; and (iii) the Indebtedness secured by such Lien
shall be permitted by clause (a)(2) of Section 4.12;
(4) Liens (including Liens arising from sale and leaseback
transactions) on any property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary, or incurred to
secure payment of all or a part of the purchase price thereof or to
secure Indebtedness incurred prior to, at the time of or within 12
months after the acquisition thereof for the purpose of financing all
or part of the purchase price thereof; provided, however, that
immediately after the creation or incurrence of any such Lien: (i) no
Default or Event of Default shall exist; (ii) such Lien shall extend
solely to the property so acquired; and (iii) the Indebtedness secured
by such Lien shall be permitted by clause (a)(2) of Section 4.12;
(5) Liens on any property to secure all or part of the cost
of alteration, repair or improvement thereof, or to secure Indebtedness
incurred to provide funds for such purpose, in a principal amount not
exceeding the cost of such alterations, repairs or improvements;
provided, however, that immediately after the creation or incurrence of
any such Lien: (i) no Default or Event of Default shall exist; (ii)
such Lien shall extend solely to the property altered, repaired or
improved; (iii) such Lien shall have been created or incurred at the
time of or within 12 months after the date of completion of such
alterations, repairs or improvements; and (iv) the Indebtedness secured
by such Lien shall be permitted by clause (a)(2) of Section 4.12;
(6) Liens which secure Indebtedness owing by a Wholly-Owned
Restricted Subsidiary to the Company or to another Wholly-Owned
Restricted
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Subsidiary; provided, however, that immediately after the creation or
incurrence of any such Lien, no Default or Event of Default shall
exist;
(7) purchase money Liens on personal property; provided,
however, that immediately after the creation or incurrence of any such
Lien: (i) no Default or Event of Default shall exist; (ii) such Lien
shall extend solely to the personal property acquired or purchased;
(iii) such Lien shall have been created or incurred at the time of or
within 12 months after the date of acquisition or purchase, as the case
may be, of such personal property; (iv) the Indebtedness secured by
such Lien shall not exceed an amount equal to the acquisition or
purchase price of such personal property; and (v) the Indebtedness
secured by such Lien shall be permitted by clause (a)(2) of Section
4.12;
(8) Liens (including judgment liens) arising in connection
with legal proceedings, taxes, fees, assessments or other governmental
charges, so long as such proceedings, taxes, fees, assessments or other
governmental charges are being contested in good faith and, in the case
of judgment liens, execution thereon is stayed and any reserves
required in accordance with GAAP have been established;
(9) Liens in favor of the United States of America or any
state thereof, or any department, agency or instrumentality or
political subdivision thereof, to secure partial, progress, advance or
other payments;
(10) carriers', warehousemen's, mechanics', landlords',
materialmens', repairmens' or other similar Liens arising in the
ordinary course of business which are not overdue for a period of more
than 60 days or are being contested in good faith by appropriate
proceedings diligently pursued; provided, however, that (i) any
proceedings commenced for the enforcement of any such Lien shall have
been stayed or suspended within 60 days of the commencement thereof and
(ii) provision for the payment of such Liens has been made to the
extent required by GAAP;
(11) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Company or any Restricted Subsidiary; and
(12) any extension, renewal, replacement or refunding of any
Lien referred to in the foregoing clauses (1) through (11); provided,
however, that immediately after the consummation of any such extension,
renewal, replacement or refunding: (i) the aggregate principal amount
of Indebtedness secured thereby shall not exceed the aggregate
principal amount of Indebtedness, plus any premium or fee payable in
connection with any such extension, renewal, replacement or refunding,
so secured at the
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time of such extension, renewal, replacement or refunding; (ii)
such Lien shall extend solely to the same property; and
(iii) no Default or Event of Default shall exist.
(c) Notwithstanding paragraphs (a) and (b) of this Section 4.13, the
Company and its Restricted Subsidiaries may create, incur, issue, assume or
guarantee Indebtedness secured by a Lien; provided, however, that at the time of
such creation, incurrence, issuance, assumption or guarantee, and immediately
after giving effect thereto, to the application of the proceeds thereof and to
the concurrent retirement of any other Indebtedness of the Company and its
Restricted Subsidiaries: (1) the aggregate amount of all Exempted Debt
(including the Exempted Debt then being created or incurred) then outstanding
shall not exceed 15% of Consolidated Net Assets; and (2) no Default or Event of
Default shall exist.
Section 4.14. Limitation on Sale and Leaseback Transactions. (a)
Neither the Company nor any Restricted Subsidiary will enter into a sale and
leaseback transaction involving any property unless: (1) such sale and leaseback
transaction shall occur at the time of or within 120 days after the date of
acquisition of such property, the date of completion of the construction thereof
or the date of commencement of full operation thereof, whichever is latest, or
(2) the Company or such Restricted Subsidiary shall apply, or cause to be
applied, to the retirement of its secured Indebtedness, at the time of or within
120 days after the consummation of such sale and leaseback transaction, an
amount not less than the greater of (i) the net proceeds of the sale of such
property or (ii) the fair market value of such property and, whether such sale
and leaseback transaction is consummated within the limitations of clause (1) or
(2) of this paragraph (a), at the time of such consummation no Default or Event
of Default shall exist and the Attributable Value in respect of such sale and
leaseback transaction shall be permitted by clause (a)(2) of Section 4.12. This
paragraph (a) will not apply to a sale and leaseback transaction involving the
taking back of a lease for a period of less than three years or between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries.
(b) Notwithstanding the restriction contained in paragraph (a) of this
Section 4.14, the Company or any Restricted Subsidiary may enter into a sale and
leaseback transaction if at the time of such transaction, and immediately after
giving effect thereto, to the application of the proceeds thereof and to the
concurrent retirement of any Indebtedness of the Company and its Restricted
Subsidiaries: (1) the Attributable Value in respect of such sale and leaseback
transaction shall be permitted by clause (a)(2) of Section 4.12; (2) the
aggregate amount of all Exempted Debt (including the Attributable Value then
being created or incurred) then outstanding shall not exceed 15% of the
Consolidated Net Assets; and (3) no Default or Event of Default shall exist.
Section 4.15. Transactions with Affiliates. The Company will not, and
will not permit any Restricted Subsidiary to, enter into or be a party to any
transaction or arrangement with any Affiliate (other than the Company and its
Restricted Subsidiaries), including, without limitation, the purchase from, the
sale to or the
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exchange of property with, or the rendering of any service by or for, any
Affiliate, except upon fair and reasonable terms no less favorable to the
Company or such Restricted Subsidiary than would obtain in a comparable
arm's-length transaction with a Person other than an Affiliate.
Section 5.1. Consolidation, Merger and Sale of Assets. The Company may
not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its assets to, another Person unless: (a) the successor (if
not the Company) or transferee shall be a corporation, partnership or other
entity organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia, and such successor (if
not the Company) or transferee expressly shall assume the Company's obligations
on the Outstanding Notes by a supplemental indenture to this Indenture; (b)
immediately after giving effect to the transaction (1) no Default or Event of
Default shall have occurred and be continuing and (2) the Company could create
or incur $1.00 of additional Indebtedness under clause (a)(2) of Section 4.12;
and (c) the Company shall deliver to the Trustee an Officers' Certificate with
respect to clauses (a) and (b) above and an Opinion of Counsel stating
compliance with clause (a) above."
ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
SECTION 4.01. Restatement of Sections 6.1 and 6.2 of the
Indenture. With respect to the Notes, Sections 6.1 and 6.2 of the Indenture are
hereby deleted in their entirety and the following Sections are substituted
therefor:
"Section 6.1. Event of Default. "Event of Default," wherever used
herein with respect to the Notes, means any one of the following events:
(a) default in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable,
whether at maturity or at a date fixed for payment or by declaration or
otherwise; or
(b) default in the payment of any interest on any Note for
more than 10 days after the same becomes due and payable; or
(c) default in the performance of or compliance with any term
contained in the covenants contained in Section 4.11, Section 4.12,
Section 4.13, Section 4.14 and Section 5.1; or
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(d) default in the performance of or compliance with any term
contained in this Indenture (other than those referred to in clauses
(a), (b) and (c) above and other than a term that has been included in
this Indenture solely for the benefit of a Series of Securities other
than the Notes) and such default is not remedied within 30 days after
the Company receiving written notice of such default from the Trustee
or any Holder of the Notes; or
(e) (i) default by the Company or any Restricted Subsidiary
(as principal or as guarantor or other surety) in the payment of any
principal of or premium or make-whole amount or interest on any
Indebtedness that is outstanding in an aggregate principal amount of at
least $25,000,000 beyond any period of grace provided with respect
thereto, or (ii) default by the Company or any Restricted Subsidiary in
the performance of or compliance with any term of any evidence of any
Indebtedness in an aggregate outstanding principal amount of at least
$25,000,000 or of any mortgage, indenture or other agreement relating
thereto or any other condition exists, and as a consequence of such
default or condition such Indebtedness has become, or has been declared
(or one or more Persons are entitled to declare such Indebtedness to
be), due and payable before its stated maturity or before its regularly
scheduled dates of payment; or
(f) the Company or any Restricted Subsidiary (i) is generally
not paying, or admits in writing its inability to pay, its debts as
they become due, (ii) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, (v) is adjudicated as insolvent or to be
liquidated or (vi) takes corporate action for the purpose of any of the
foregoing; or
(g) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by the Company
or any of its Restricted Subsidiaries, a custodian, receiver, trustee
or other officer with similar powers with respect to it or with respect
to any substantial part of its property, or
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constituting an order for relief or approving a petition for relief or
reorganization or any other petition in bankruptcy or for liquidation
or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of
the Company or any of its Restricted Subsidiaries, or any such petition
shall be filed against the Company or any of its Restricted
Subsidiaries and such petition shall not be dismissed within 60 days;
or
(h) a final judgment or judgments for the payment of money
aggregating in excess of $25,000,000 (excluding for purposes of such
determination the amount of any insurance proceeds paid by or on behalf
of the Company or any of its Restricted Subsidiaries in respect of such
judgment or judgments or unconditionally acknowledged in writing to be
payable by the insurance carrier that issued the related insurance
policy) are rendered against one or more of the Company and its
Restricted Subsidiaries and which judgments are not, within 60 days
after entry thereof, bonded, discharged or stayed pending appeal, or
are not discharged within 60 days after the expiration of such stay.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
In case an Event of Default with respect to the Notes shall occur and be
continuing (other than an Event of Default specified in Section 6.1(f) or (g)),
then in every such case the Trustee or the Holders of not less than 51% in
aggregate principal amount of all Outstanding Notes may, by a notice in writing
to the Company (and to the Trustee if given by the Holders of Outstanding
Notes), declare to be due and payable immediately the principal amount of and
the accrued and unpaid interest, if any, on all Notes, plus the Make-Whole
Amount determined in respect of such principal amount. In case an Event of
Default specified in Section 6.1(f) or (g) shall occur and be continuing, the
principal amount of and the accrued and unpaid interest, if any, on all
Outstanding Notes, plus the Make Whole Amount determined in respect of such
principal amount, shall become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder of the
Outstanding Notes. In case an Event of Default specified in Section 6.1(a) or
(b) shall occur and be continuing, any Holder or Holders of Outstanding Notes
affected by such Event of Default may at any time, at its or their option, by a
notice or notices to the Company and the Trustee, declare to be due and payable
immediately the principal amount of and the accrued and unpaid interest, if any,
on all Notes held by it or them, plus the Make-Whole Amount determined in
respect of such principal amount.
At any time after the Trustee or the Holder or Holders of Outstanding
Notes make a declaration of acceleration with respect to the Notes, but before
the Trustee obtains a judgment or decree for payment of the money due, the
Holders of 65% in aggregate principal amount of the
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Outstanding Notes, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest, if any, on the Notes,
(ii) the principal of, and the interest and
Make-Whole Amount, if any, on, any Note which has become due
otherwise than by declaration of acceleration,
(iii) to the extent that payment of such interest is
lawful, interest on any overdue principal, any overdue
interest and any overdue Make-Whole Amount, and
(iv) all sums which the Trustee has paid or advanced,
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to the Notes (other than the
non-payment of accelerated principal) have been cured or waived as provided in
Section 6.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon."
SECTION 4.02. Amendment of Section 6.3 of the Indenture. With respect
to the Notes, clause (a) of the first paragraph of Section 6.3 of the Indenture
is hereby amended by deleting the number "30" and replacing it with the number
"10."
SECTION 4.03. Amendment of Section 6.7 of the Indenture. With respect
to the Notes, Section 6.7 of the Indenture is hereby amended by deleting the
words "a majority" in clauses (b) and (e) thereof and replacing them with the
figure "51%."
SECTION 4.04. Amendment of Section 6.13 of the Indenture. With respect
to the Notes, Section 6.13 of the Indenture is hereby amended by deleting the
words "a majority" in the seventh line thereof and replacing them with the
figure "65%."
ARTICLE V
MISCELLANEOUS
24
26
SECTION 5.01. Amendment of Section 2.9 of the Indenture. The following
paragraph is hereby added at the end of Section 2.9 of the Indenture:
"Solely for the purpose of determining whether the Holders of the
requisite percentage of the aggregate principal amount of the Outstanding Notes
have approved or consented to any amendment, waiver or consent to be given under
this Indenture, or have directed the taking of any action provided for in this
Indenture or in the Notes to be taken upon the direction of the Holders of a
specified percentage of the aggregate principal amount of the Outstanding Notes,
Notes directly or indirectly owned by the Company or any of its Subsidiaries
shall be deemed not to be outstanding."
SECTION 5.02. Restatement of Section 9.1 of the Indenture. With respect
to the Notes, Section 9.1 of the Indenture is hereby deleted in its entirety and
the following Section is substituted therefor:
"Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any Securityholder:
(a) to comply with Article V;
(b) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as permitted by this Indenture;
(c) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(d) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA."
SECTION 5.03. Amendment of Section 9.3 of the Indenture. With respect
to the Notes, clause (e) of Section 9.3 of the Indenture is hereby amended by
deleting the words "a majority" and replacing them with the figure "65%."
SECTION 5.04. Trustee Not Responsible. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or the due execution hereof
25
27
by the Company, or for or in respect of the recitals and statements contained
herein, all of which are made solely by the Company.
SECTION 5.05. No Added Trustee Duties. Except as herein otherwise
expressly provided, no duties, responsibilities or liabilities are assumed, or
shall be construed to be assumed, by the Trustee by reason of this Supplemental
Indenture other than as set forth in the Indenture; and this Supplemental
Indenture is executed and accepted on behalf of the Trustee subject to all the
terms and conditions set forth in the Indenture as fully to all intents as if
the same were herein set forth at length.
SECTION 5.06. Incorporation and Confirmation of the Indenture. Except
as herein otherwise expressly provided, all the provisions, definitions, terms
and conditions of the Indenture shall be deemed to be incorporated in, and made
a part of, this Supplemental Indenture; the Indenture is in all respects
ratified and confirmed; and the Indenture and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument.
SECTION 5.07. Company Successors and Assigns Bound. All covenants and
agreements in this Supplemental Indenture by or on behalf of the Company shall
bind and inure to the benefit of its successors and assigns, whether so
expressed or not.
SECTION 5.08. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE NOTES
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
SECTION 5.09. Execution in Counterparts. This Supplemental Indenture
may be executed in any number of counterparts, each of which when so executed
shall be deemed an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 5.10. Severability. In case any provision in this 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 5.11. Table of Contents; Headings. The Table of Contents and
headings of the Articles and Sections 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.
26
28
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
XXXXXXX COMPUTER SERVICES, INC.
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------------
Name:
Title:
28
29
TABLE OF CONTENTS
Page
FIRST SUPPLEMENTAL INDENTURE .....................................................................................1
RECITALS .........................................................................................................1
ARTICLE I.........................................................................................................1
DEFINITIONS ......................................................................................................1
SECTION 1.01. Definitions......................................................................1
ARTICLE II.......................................................................................................10
ESTABLISHMENT OF FIRST SERIES OF SECURITIES......................................................................10
SECTION 2.01. Establishment of Limited Series of Notes.........................................10
SECTION 2.02. Maturity Dates...................................................................10
SECTION 2.03. Interest Rates and Payment Dates.................................................10
SECTION 2.04. Place of Payment.................................................................11
SECTION 2.05. No Mandatory Prepayments.........................................................11
SECTION 2.06. Optional Prepayments............................................................11
SECTION 2.07. Option to Tender after Change in Control.........................................12
SECTION 2.08. Denominations....................................................................13
SECTION 2.09. Form of Notes....................................................................13
SECTION 2.10. Notes Payable in Dollars. .......................................................13
SECTION 2.11. Restrictions on Transfers. ......................................................14
SECTION 2.12. Events of Default................................................................14
SECTION 2.13. Covenants. .....................................................................14
i
30
SECTION 2.14. No Defeasance...................................................................14
SECTION 2.15. Deemed Representations and Agreement............................................14
ARTICLE III......................................................................................................14
COVENANTS........................................................................................................14
SECTION 3.01. Amendment of Section 4.3 of the Indenture.......................................14
SECTION 3.02. Restatement of Sections 4.5, 4.6 and 5.1 of the Indenture; Additional Covenants.14
Section 4.5. Corporate Existence, Etc..................................................................14
Section 4.6. Payment of Taxes and Claims...............................................................15
Section 4.7. Compliance with Law.......................................................................15
Section 4.8. Insurance.................................................................................15
Section 4.9. Maintenance of Properties.................................................................15
Section 4.10. Notes to Rank Pari Passu..................................................................16
Section 4.11. Consolidated Net Worth....................................................................16
Section 4.12. Limitation on Incurrence of Indebtedness..................................................16
Section 4.13 Limitation on Secured Debt................................................................17
Section 4.14. Limitation on Sale and Leaseback Transactions.............................................19
Section 4.15. Transactions with Affiliates..............................................................20
Section 5.1. Consolidation, Merger and Sale of Assets..................................................20
ARTICLE IV......................................................................................................21
EVENTS OF DEFAULT AND REMEDIES...................................................................................21
SECTION 4.01. Restatement of Sections 6.1 and 6.2 of the Indenture...........................21
Section 6.1. Event of Default..........................................................................21
Section 6.2. Acceleration of Maturity; Rescission and Annulment........................................23
SECTION 4.02.....................................................................................................24
SECTION 4.03. Amendment of Section 6.7 of the Indenture......................................24
SECTION 4.04. Amendment of Section 6.13 of the Indenture.....................................24
ii
31
ARTICLE V........................................................................................................24
MISCELLANEOUS....................................................................................................24
SECTION 5.01. Amendment of Section 2.9 of the Indenture.......................................24
SECTION 5.02. Restatement of Section 9.1 of the Indenture.....................................24
SECTION 5.03. Amendment of Section 9.3 of the Indenture......................................25
SECTION 5.04. Trustee Not Responsible.........................................................25
SECTION 5.05. No Added Trustee Duties.........................................................25
SECTION 5.06. Incorporation and Confirmation of the Indenture.................................25
SECTION 5.07. Company Successors and Assigns Bound............................................25
SECTION 5.08. Governing Law...................................................................25
SECTION 5.09. Execution in Counterparts.......................................................26
SECTION 5.10. Severability....................................................................26
SECTION 5.11. Table of Contents; Headings.....................................................26
iii
32
Annex A - Form of 6.92% Note
Annex B - Form of 7.26% Note
iv
33
ANNEX A
[Form of 6.92% Note]
XXXXXXX COMPUTER SERVICES, INC.
6.92% SENIOR NOTE DUE JANUARY 15, 2006
THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
No.
$ CUSIP 932270 AB 7
For Value Received, the undersigned, XXXXXXX COMPUTER
SERVICES, INC. (herein called the "Company"), a corporation organized and
existing under the laws of the State of Delaware, hereby promises to pay
to______________________________________________________________________________
__________________________________ or registered assigns, the principal sum of
____________________________________________ DOLLARS on January 15, 2006, with
interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance thereof at the rate of 6.92% per annum from the date
hereof, payable semi-annually on April 1 and October 1 in each year and at
maturity, commencing on April 1, 1999, until the principal hereof shall have
become due and payable and (b) to the extent permitted by law, on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
First Supplemental Indenture referred to below), payable semi-annually as
aforesaid (or, at the option of the registered Holder, on demand), at a rate per
annum from time to time equal to the greater of (i) 7.92% or (ii) 1% over the
rate of interest publicly announced by Citibank N.A. from time to time in New
York, New York as its "base" or "prime" rate.
The interest so payable, and punctually paid or duly provided
for, shall be paid to the Person in whose name this Note is registered at the
close of business on the March 15 or September 15 (whether or not a Business
Day), as the case may be, next preceding the immediately following interest
payment date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on the regular
record date and may either be paid to the Person in whose name this Note is
registered at the close of business on a special record date, which shall be
fixed by the Company, for the payment of such defaulted interest, notice of
which shall be given to the Holders of the Notes not less than 30 days prior to
such special record date, or be paid at any time in any other lawful manner, all
as more fully provided in the Indenture referred to below.
34
Except as otherwise provided in the Purchase Agreements,
payment of the principal of, and the Make-Whole Amount, if any, and the interest
on, this Note shall be made in Dollars at the Corporate Trust Office, or at such
other place or places (and in such other manner) as the Company and the
registered Holder of this Note shall agree to in writing.
This Note is one of a duly authorized issue of Securities of
the Company, unlimited in aggregate principal amount, issued or to be issued
under the Indenture dated as of January 15, 1999 (herein called the "Indenture")
duly executed and delivered by the Company and The Bank of New York, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture). Reference is hereby made to the Indenture, all indentures
supplemental thereto and all resolutions of the Board of Directors establishing,
and resolutions or other actions pursuant thereto by which there shall be
established, a Series of Securities (and the forms and terms of each Series so
established) 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 Securities, and of the terms upon which the Securities are,
and are to be, issued. As provided in the Indenture, the Securities are issuable
in Series, which may vary as to aggregate principal amounts, maturity dates,
interest rates and redemption, retirement and repurchase provisions (if any) and
which may be subject to different covenants and Events of Default and may
otherwise vary as therein provided. This Note is one of a Series designated
"6.92%-7.26% Senior Notes" (herein called the "Notes") established by the First
Supplemental Indenture dated as of January 15, 1999 (herein called the "First
Supplemental Indenture") duly executed and delivered by the Company and the
Trustee and limited in aggregate principal amount to $200,000,000.
The Notes are not entitled to the benefit of any sinking fund
or analogous mandatory prepayment provisions.
The Company may, at its option, prepay at any time all, or
from time to time any part of, the Notes, in an amount not less than 10% of the
aggregate principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid, together with
interest accrued thereon to the date of such prepayment, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Company will give each Holder of the Notes written notice of each optional
prepayment not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. In the case of each partial prepayment of the Notes,
the principal amount of the Notes to be prepaid shall be allocated among all of
the Notes at the time outstanding in proportion, as nearly as practicable, to
the respective unpaid principal amounts thereof not theretofore called for
prepayment.
From and after any prepayment date, unless the Company shall
fail to pay the principal amount to be prepaid when due and payable, together
with the interest and the Make-Whole Amount, if any, as aforesaid, interest on
such principal amount shall cease to accrue.
-2-
35
The Company will, within five Business Days after any
Responsible Company Officer has actual knowledge of any Change in Control or
Control Event, give written notice thereof to each Holder of the Notes, all as
more fully specified in the First Supplemental Indenture. Such written notice
shall contain an offer to prepay all, but not less than all, of the Notes held
by each Holder of the Notes at 100% of the principal amount thereof, together
with interest accrued thereon to the date of such prepayment, but without any
Make-Whole Amount or other premium, on the date specified in such written
notice, which shall be given not less than 30 days prior to the consummation of
a Change in Control. A Holder of the Notes may accept such an offer to prepay by
delivering a notice of acceptance to the Company not later than 15 days after
the receipt by such Holder of such an offer. A failure by a Holder of the Notes
so to respond to such an offer shall be deemed to constitute a rejection
thereof. The obligation of the Company to prepay Notes pursuant to an offer
described in this paragraph is subject to the occurrence of the Change in
Control in respect of which such offer shall have been made. In the event that
such Change in Control shall not have occurred on the proposed prepayment date
in respect thereof, any prepayment shall be deferred until, and shall be made
on, the date on which such Change in Control shall occur. The Company shall keep
each Holder of the Notes reasonably informed as to (i) any such deferral and the
date on which such Change in Control and prepayment are expected to occur and
(ii) any determination by the Company that efforts to effect such Change in
Control have ceased or been abandoned, in which case the related offer to prepay
and any acceptances thereof shall be deemed to be rescinded.
If an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the First Supplemental
Indenture and the Indenture.
No reference herein to the First Supplemental Indenture or the
Indenture and no provision of this Note, the First Supplemental Indenture or the
Indenture shall alter or impair the right of each Holder of the Notes, which is
absolute and unconditional, to receive payment of the principal of, and the
Make-Whole Amount, if any, and the interest on, this Note at the times, rate and
place herein prescribed and to institute suit for the enforcement of any such
payment.
To the extent permitted by the Indenture, modifications or
alterations of the Indenture or of any indenture supplemental thereto and of the
rights and obligations of the Company and of the rights of the Holders of the
Securities of any Series may, with the written consent of the Holders of a
majority in principal amount of the outstanding Securities of each Series to be
affected by such modification or alteration, be made at any time by the Company
and the Trustee. Certain rights and obligations of the Company and rights of the
Holders of the Securities of any Series may be modified or altered only with the
consent of each Holder affected. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the outstanding
Securities of each Series, on behalf of the Holders of all Securities of such
Series, to waive compliance by the Company with any of the provisions of the
Indenture, including the First Supplemental Indenture, and any past Defaults
thereunder and its consequences, except a Default in the payment of the
principal of, or the premium (including
-3-
36
Make-Whole Amount) or the interest, if any, on, any Securities of such Series
or, if applicable, in respect of any covenant or provision which cannot be
modified or altered without the consent of each affected Holder of the
Securities of such Series then outstanding.
The Company will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any Holder of the Notes as
consideration for or as an inducement to the executing by any Holder of the
Notes of any waiver or consent to the modification or alteration of any of the
terms and provisions of the Notes or the First Supplemental Indenture unless
such remuneration is concurrently paid, or such security is concurrently
granted, on the same terms, ratably to each Holder of the Outstanding Notes even
if such Holder did not execute such waiver or consent.
The Notes are issuable only in registered form and initially
only in denominations of $300,000 and in multiples of $50,000 in excess thereof.
The Notes shall be transferable only in denominations of $300,000 and multiples
of $50,000; provided that if necessary to enable the registration of transfer by
a Holder of its entire holding of the Notes, one Note may be in a denomination
of less than $300,000.
As provided in the Indenture and subject to the limitations
set forth therein and in Section 8.4 of the Purchase Agreements, the transfer or
exchange of this Note shall be registrable in the Note register maintained in
accordance with Section 2.4 of the Indenture. No service charge shall be made
for any registration of transfer or exchange (except as expressly permitted in
the Indenture), but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 3.6 or 9.6 of the Indenture).
Prior to the due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the Person in whose name this Note is registered as the owner
hereof for all purposes; and the Company, the Trustee and any such agent shall
not be affected by any notice to the contrary.
Each Holder of this Note shall be deemed, by its acceptance
hereof: (i) to have made the representations set forth in Sections 6.1 and 6.2
of the Purchase Agreements on and as of the date of such acceptance and (ii) to
have agreed to the confidentiality provisions set forth in Section 15 of the
Purchase Agreements.
No recourse shall be had for the payment of the principal of,
or the Make-Whole Amount, if any, or the interest on, this Note, or for any
claim based hereon or otherwise in respect hereof, or of the Indenture, any
indenture supplemental thereto or any Board Resolution relating to the Notes,
against any incorporator, stockholder, director or officer, past, present or
future, of the Company or of any predecessor or successor corporation, as such,
either directly or
-4-
37
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Unless the certificate of authentication hereon shall have
been executed by the Trustee by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the First Supplemental Indenture
or be valid or obligatory for any purpose.
All capitalized terms not defined herein shall have the
respective meanings specified in the Indenture as amended and supplemented by
the First Supplemental Indenture.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
IN WITNESS WHEREOF, XXXXXXX COMPUTER SERVICES, INC. has caused
this Note to be signed in its name and on its behalf by the manual signature of
two duly authorized Officers.
Dated:
XXXXXXX COMPUTER SERVICES, INC.
By:
----------------------------
By:
----------------------------
-5-
38
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein
referred to in the within-mentioned Indenture and First Supplemental Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Authorized Officer
-6-
39
ANNEX B
[Form of 7.26% Note]
XXXXXXX COMPUTER SERVICES, INC.
7.26% SENIOR NOTE DUE JANUARY 15, 2009
THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER
No.
$ CUSIP 932270 AC 5
For Value Received, the undersigned, XXXXXXX COMPUTER
SERVICES, INC. (herein called the "Company"), a corporation organized and
existing under the laws of the State of Delaware, hereby promises to
pay to__________________________________________________________________________
_________________________________or registered assigns, the principal sum of
____________________________________________ DOLLARS on January 15, 2009, with
interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance thereof at the rate of 7.26% per annum from the date
hereof, payable semi-annually on April 1 and October 1 in each year and at
maturity, commencing on April 1, 1999, until the principal hereof shall have
become due and payable and (b) to the extent permitted by law, on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Make-Whole Amount (as defined in the
First Supplemental Indenture referred to below), payable semi-annually as
aforesaid (or, at the option of the registered Holder, on demand), at a rate per
annum from time to time equal to the greater of (i) 8.26% or (ii) 1% over the
rate of interest publicly announced by Citibank N.A. from time to time in New
York, New York as its "base" or "prime" rate.
The interest so payable, and punctually paid or duly provided
for, shall be paid to the Person in whose name this Note is registered at the
close of business on the March 15 or September 15 (whether or not a Business
Day), as the case may be, next preceding the immediately following interest
payment date. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on the regular
record date and may either be paid to the Person in whose name this Note is
registered at the close of business on a special record date, which shall be
fixed by the Company, for the payment of such defaulted interest, notice of
which shall be given to the Holders of the Notes not less than 30 days prior to
such special record date, or be paid at any time in any other lawful manner, all
as more fully provided in the Indenture referred to below.
-1-
40
Except as otherwise provided in the Purchase Agreements,
payment of the principal of, and the Make-Whole Amount, if any, and the interest
on, this Note shall be made in Dollars at the Corporate Trust Office, or at such
other place or places (and in such other manner) as the Company and the
registered Holder of this Note shall agree to in writing.
This Note is one of a duly authorized issue of Securities of
the Company, unlimited in aggregate principal amount, issued or to be issued
under the Indenture dated as of January 15, 1999 (herein called the "Indenture")
duly executed and delivered by the Company and The Bank of New York, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture). Reference is hereby made to the Indenture, all indentures
supplemental thereto and all resolutions of the Board of Directors establishing,
and resolutions or other actions pursuant thereto by which there shall be
established, a Series of Securities (and the forms and terms of each Series so
established) 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 Securities, and of the terms upon which the Securities are,
and are to be, issued. As provided in the Indenture, the Securities are issuable
in Series, which may vary as to aggregate principal amounts, maturity dates,
interest rates and redemption, retirement and repurchase provisions (if any) and
which may be subject to different covenants and Events of Default and may
otherwise vary as therein provided. This Note is one of a Series designated
"6.92%-7.26% Senior Notes" (herein called the "Notes") established by the First
Supplemental Indenture dated as of January 15, 1999 (herein called the "First
Supplemental Indenture") duly executed and delivered by the Company and the
Trustee and limited in aggregate principal amount to $200,000,000.
The Notes are not entitled to the benefit of any sinking fund
or analogous mandatory prepayment provisions.
The Company may, at its option, prepay at any time all, or
from time to time any part of, the Notes, in an amount not less than 10% of the
aggregate principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid, together with
interest accrued thereon to the date of such prepayment, plus the Make-Whole
Amount determined for the prepayment date with respect to such principal amount.
The Company will give each Holder of the Notes written notice of each optional
prepayment not less than 30 days and not more than 60 days prior to the date
fixed for such prepayment. In the case of each partial prepayment of the Notes,
the principal amount of the Notes to be prepaid shall be allocated among all of
the Notes at the time outstanding in proportion, as nearly as practicable, to
the respective unpaid principal amounts thereof not theretofore called for
prepayment.
From and after any prepayment date, unless the Company shall
fail to pay the principal amount to be prepaid when due and payable, together
with the interest and the Make-Whole Amount, if any, as aforesaid, interest on
such principal amount shall cease to accrue.
-2-
41
The Company will, within five Business Days after any
Responsible Company Officer has actual knowledge of any Change in Control or
Control Event, give written notice thereof to each Holder of the Notes, all as
more fully specified in the First Supplemental Indenture. Such written notice
shall contain an offer to prepay all, but not less than all, of the Notes held
by each Holder of the Notes at 100% of the principal amount thereof, together
with interest accrued thereon to the date of such prepayment, but without any
Make-Whole Amount or other premium, on the date specified in such written
notice, which shall be given not less than 30 days prior to the consummation of
a Change in Control. A Holder of the Notes may accept such an offer to prepay by
delivering a notice of acceptance to the Company not later than 15 days after
the receipt by such Holder of such an offer. A failure by a Holder of the Notes
so to respond to such an offer shall be deemed to constitute a rejection
thereof. The obligation of the Company to prepay Notes pursuant to an offer
described in this paragraph is subject to the occurrence of the Change in
Control in respect of which such offer shall have been made. In the event that
such Change in Control shall not have occurred on the proposed prepayment date
in respect thereof, any prepayment shall be deferred until, and shall be made
on, the date on which such Change in Control shall occur. The Company shall keep
each Holder of the Notes reasonably informed as to (i) any such deferral and the
date on which such Change in Control and prepayment are expected to occur and
(ii) any determination by the Company that efforts to effect such Change in
Control have ceased or been abandoned, in which case the related offer to prepay
and any acceptances thereof shall be deemed to be rescinded.
If an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the First Supplemental
Indenture and the Indenture.
No reference herein to the First Supplemental Indenture or the
Indenture and no provision of this Note, the First Supplemental Indenture or the
Indenture shall alter or impair the right of each Holder of the Notes, which is
absolute and unconditional, to receive payment of the principal of, and the
Make-Whole Amount, if any, and the interest on, this Note at the times, rate and
place herein prescribed and to institute suit for the enforcement of any such
payment.
To the extent permitted by the Indenture, modifications or
alterations of the Indenture or of any indenture supplemental thereto and of the
rights and obligations of the Company and of the rights of the Holders of the
Securities of any Series may, with the written consent of the Holders of a
majority in principal amount of the outstanding Securities of each Series to be
affected by such modification or alteration, be made at any time by the Company
and the Trustee. Certain rights and obligations of the Company and rights of the
Holders of the Securities of any Series may be modified or altered only with the
consent of each Holder affected. The Indenture also contains provisions
permitting the Holders of a majority in principal amount of the outstanding
Securities of each Series, on behalf of the Holders of all Securities of such
Series, to waive compliance by the Company with any of the provisions of the
Indenture, including the First Supplemental Indenture, and any past Defaults
thereunder and its consequences, except a Default in the payment of the
principal of, or the premium (including
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Make-Whole Amount) or the interest, if any, on, any Securities of such Series
or, if applicable, in respect of any covenant or provision which cannot be
modified or altered without the consent of each affected Holder of the
Securities of such Series then outstanding.
The Company will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any Holder of the Notes as
consideration for or as an inducement to the executing by any Holder of the
Notes of any waiver or consent to the modification or alteration of any of the
terms and provisions of the Notes or the First Supplemental Indenture unless
such remuneration is concurrently paid, or such security is concurrently
granted, on the same terms, ratably to each Holder of the Outstanding Notes even
if such Holder did not execute such waiver or consent.
The Notes are issuable only in registered form and initially
only in denominations of $300,000 and in multiples of $50,000 in excess thereof.
The Notes shall be transferable only in denominations of $300,000 and multiples
of $50,000; provided that if necessary to enable the registration of transfer by
a Holder of its entire holding of the Notes, one Note may be in a denomination
of less than $300,000.
As provided in the Indenture and subject to the limitations
set forth therein and in Section 8.4 of the Purchase Agreements, the transfer or
exchange of this Note shall be registrable in the Note register maintained in
accordance with Section 2.4 of the Indenture. No service charge shall be made
for any registration of transfer or exchange (except as expressly permitted in
the Indenture), but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 3.6 or 9.6 of the Indenture).
Prior to the due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the Person in whose name this Note is registered as the owner
hereof for all purposes; and the Company, the Trustee and any such agent shall
not be affected by any notice to the contrary.
Each Holder of this Note shall be deemed, by its acceptance
hereof: (i) to have made the representations set forth in Sections 6.1 and 6.2
of the Purchase Agreements on and as of the date of such acceptance and (ii) to
have agreed to the confidentiality provisions set forth in Section 15 of the
Purchase Agreements.
No recourse shall be had for the payment of the principal of,
or the Make-Whole Amount, if any, or the interest on, this Note, or for any
claim based hereon or otherwise in respect hereof, or of the Indenture, any
indenture supplemental thereto or any Board Resolution relating to the Notes,
against any incorporator, stockholder, director or officer, past, present or
future, of the Company or of any predecessor or successor corporation, as such,
either directly or
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through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
Unless the certificate of authentication hereon shall have
been executed by the Trustee by manual signature, this Note shall not be
entitled to any benefit under the Indenture or the First Supplemental Indenture
or be valid or obligatory for any purpose.
All capitalized terms not defined herein shall have the
respective meanings specified in the Indenture as amended and supplemented by
the First Supplemental Indenture.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
IN WITNESS WHEREOF, XXXXXXX COMPUTER SERVICES, INC. has caused
this Note to be signed in its name and on its behalf by the manual signature of
two duly authorized Officers.
Dated:
XXXXXXX COMPUTER SERVICES, INC.
By:
---------------------------
By:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein
referred to in the within-mentioned Indenture and First Supplemental Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------
Authorized Officer
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