Contract
SUPPLEMENTAL
INDENTURE, dated as of July 13, 2007, to the Indenture dated as of May 16,
2005
(as amended and supplemented to the date hereof, the “Indenture”), among The GSI
Group, Inc., a Delaware corporation (the “Company”), GSI Holdings Corp., a
Delaware corporation (the “Guarantor”) and U.S. Bank National Association, as
trustee (the “Trustee”).
W
I T N E
S S E T H:
WHEREAS,
the Company, the Guarantor and the Trustee have heretofore entered into the
Indenture, and the 12% Senior Notes due 2013 (the “Notes”) of the Company have
been issued pursuant thereto;
WHEREAS,
Section 9.02 of the Indenture provides that the Company, the Guarantor and
the
Trustee may, with the requisite consents of the holders of the Notes, enter
into
a supplemental indenture for the purpose of amending certain provisions of
the
Indenture;
WHEREAS,
the Company has offered to purchase for cash any and all of the outstanding
Notes upon the terms and subject to the conditions set forth in the Offer to
Purchase and Consent Solicitation Statement, dated June 29, 2007 (as the same
may be amended or supplemented from time to time, the “Statement”), and in the
related Consent and Letter of Transmittal (as the same may be amended or
supplemented from time to time, the “Consent and Letter of Transmittal” and,
together with the Statement, with respect to the Notes, the “Offer”), from each
Holder of such Notes;
WHEREAS,
the Offer is conditioned upon, among other things, certain amendments to the
Indenture and to the Notes set forth in Article Two, Article Three and Article
Four of this Supplemental Indenture (the “Amendments”) having been approved by
Holders of a majority of the outstanding principal amount of the Notes and
a
supplemental indenture in respect thereof having been executed and
delivered;
WHEREAS,
the Company has received and delivered to the Trustee the consents from Holders
of more than a majority of the outstanding aggregate principal amount of the
Notes to effect the Amendments;
WHEREAS,
the Company and the Guarantor have been authorized by a resolution of their
respective Board of Directors to enter into this Supplemental Indenture;
and
WHEREAS,
all other acts and proceedings required by law, by the Indenture and by the
charter documents of the Company and the Guarantor to make this Supplemental
Indenture a valid and binding agreement for the purposes expressed herein,
in
accordance with its terms, have been duly done and performed;
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, and for other good and valuable consideration the receipt
of
which is hereby acknowledged, the Company, the Guarantor and the Trustee hereby
agree as follows:
ARTICLE
1
SECTION
1.01 Definitions
Capitalized
terms used in this Supplemental Indenture and not otherwise defined herein
shall
have the meanings assigned to such terms in the Indenture.
ARTICLE
2
SECTION
2.01 Amendments to Table of Contents
(a)
The
Table of Contents of the Indenture is amended by deleting the titles to Section
3.09 and Section 4.02 through Section 4.12 and Section
4.14 through
4.18 and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(b)
The
Table of Contents of the Indenture is amended by deleting the title to Section
5.02 and replacing it with the following: “Successor Person
Substituted”.
ARTICLE
3
SECTION
3.01 Elimination of Certain Definitions in Article 1
(a)
Section 1.01 of the Indenture is amended by deleting the definitions “Acquired
Debt”; “Asset Sale”; “Borrowing Base”; “Cash Equivalents”; “Change of Control”;
“Change of Control Offer”;“Consolidated
Cash
Flow”; “Consolidated Net Income”; “Consolidated Tangible Assets”; “Change of
Control”; “Change of Control Offer”; “Credit AgreementsAgreement”; “Credit
Facilities”; “Existing Indebtedness”; “Fair Market Value”; “Fixed Charge
Coverage Ratio”; “Fixed Charges”; “Immaterial Subsidiary”; “Investments”;
“Leverage Ratio”; “Liquidity”, “Management Fees”; “Xxxxx’x”; “Net Income”; “Net
Proceeds”; “Permitted Business”; “Permitted Investments”; “Permitted Liens”;
“Permitted Payments to Holdco”; “Permitted Refinancing Indebtedness”;
“Principal”; “Related Party”; “Restricted Investment”; “S&P”; “Senior
Indebtedness”; “Subordinated Indebtedness”; “Subsidiary Guarantee”; “Tax
Distributions”; and “Weighted Average Life to Maturity” contained therein in
their entirety.
(b)
Section 1.02 of the Indenture is amended by deleting the definitions “Affiliate
Transaction”; “Asset Sale Offer”; “Change of Control Offer”; “Change of Control
Payment”; “Change of Control Payment Date”; “Excess Proceeds”; “incur”; “Offer
Amount”; “Offer Period”; “Payment Default”; “Purchase Date”; and “Restricted
Payments” contained therein in their entirety.
SECTION
3.02 Elimination of Certain Provisions in Article 3
Section
3.09 of the Indenture is amended by deleting the text of such Section in its
entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”
SECTION
3.03 Amendment and Elimination of Certain Provisions in Article
4
(a)
Section 4.02 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(b)
Section 4.03 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(c)
Section 4.04 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(d)
Section 4.05 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(e)
Section 4.06 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(f)
Section 4.07 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(g)
Section 4.08 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(h)
Section 4.09 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(i)
Section 4.10 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(j)
Section 4.11 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(k)
Section 4.12 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(l)
Section 4.13 of the Indenture deleting it in its entirety and replacing it
with
the following:
“Subject
to Article 5 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its
existence.”
(m)
Section 4.14 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(n)
Section 4.15 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(o)
Section 4.16 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(p)
Section 4.17 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(q)
Section 4.18 of the Indenture is amended by deleting the text of such Section
in
its entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(r)
Section 4.19 of the Indenture is amended by deleting it in its entirety and
replacing it with the following:
“The
Board of Directors of the Company may designate any Restricted Subsidiary to
be
an Unrestricted Subsidiary if that designation would not cause a Default or
an
Event of Default and is otherwise not prohibited hereunder.
Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will
be
evidenced to the Trustee by filing with the Trustee a certified copy of a
resolution of the Board of Directors giving effect to such designation and
an
Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted.”
SECTION
3.04 Amendment of Certain Provisions in Article 5
(a)
Section 5.01 of the Indenture is amended by deleting it in its entirety and
replacing it with the following:
“The
Company shall not, directly or indirectly: (1) consolidate or merge with or
into
another Person (whether or not the Company is the surviving Person); or (2)
sell, assign, transfer, convey or otherwise dispose of all or substantially
all
of the properties or assets of the Company and its Restricted Subsidiaries
taken
as a whole, in one or more related transactions, to another Person,
unless:
(1)
either:
(A)
the
Company is the surviving Person; or
(B)
the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a Person organized or existing under the laws
of
the United States, any state of the United States or the District of Columbia;
and
(2)
the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, conveyance
or other disposition has been made assumes all the obligations of the Company
under the Notes, this Indenture and the Registration Rights Agreement pursuant
to agreements reasonably satisfactory to the Trustee.”
(b)
The
title of Section 5.02 of the Indenture is amended by retitling such section
as
“Section 5.02. Successor Person Substituted”
SECTION
3.05 Amendment of Certain Provisions in Article 6
Section
6.01 of the Indenture is amended by deleting it in its entirety and replacing
it
with the following:
“Each
of
the following is an “Event of Default”:
(1)
default for 30 days in the payment when due of interest on, or Liquidated
Damages, if any, with respect to, the Notes;
(2)
default in the payment when due (at maturity, upon redemption or otherwise)
of
the principal of, or premium, if any, on, the Notes;
(3)
[intentionally omitted]
(4)
[intentionally omitted]
(5)
[intentionally omitted]
(6)
[intentionally omitted]
(7)
the
Company pursuant to or within the meaning of Bankruptcy Law:
(A)
commences a voluntary case,
(B)
consents to the entry of an order for relief against it in an involuntary
case,
(C)
consents to the appointment of a custodian of it or for all or substantially
all
of its property,
(D)
makes
a general assignment for the benefit of its creditors, or
(E)
generally is not paying its debts as they become due; and
(8)
a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(A)
is
for relief against the Company in an involuntary case;
(B)
appoints a custodian of the Company or for all or substantially all of the
property of the Company; or
(C)
orders the liquidation of the Company;
and
the
order or decree remains unstayed and in effect for 60 consecutive
days.
(9)
[intentionally omitted]”
SECTION
3.06 Elimination of Certain Provisions in Article 8
Section
8.04 of the Indenture is amended by deleting the text of clauses (2) through
(5)
in their entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”
SECTION
3.07 Amendment and Elimination of Certain Provisions in Article
10
(a)
Section 10.04 of the Indenture is amended by deleting the text of clauses (1)
and (2)(b) in their entireties and inserting in lieu thereof the phrase
“[intentionally omitted]” and deleting the word “either” at the beginning of
clause (2).
(b)
Section 10.05 of the Indenture is amended by deleting the text of clause (a)
in
its entirety and replacing it with the following:
“In
the
event of any sale or other disposition of all or substantially all of the assets
of any Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the Capital Stock of any Guarantor, in each case
to
a Person that is not (either before or after giving effect to such transactions)
the Company or a Restricted Subsidiary of the Company, then such Guarantor
(in
the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all
or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Note Guarantee. Upon delivery by the Company to
the
Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, the Trustee will execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Note Guarantee.”
SECTION
3.08 Elimination of Certain Provisions in Article 11
Section
11.01 of the Indenture is amended by deleting the text of clause (2) in its
entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
ARTICLE
FOUR
SECTION
4.01 Elimination of Certain Provisions in the Note
The
Notes
are deemed to be amended as follows:
(a)
Section 4 of the Notes is amended by replacing “(the “Indenture”)” with “(as
amended from time to time, the “Indenture”)”.
(b)
Section 7 of the Notes is amended by deleting the text of such Section in its
entirety and inserting in lieu thereof the phrase “[intentionally
omitted]”.
(c)
Section 12 of the Notes is amended by deleting the first sentence of such
section in its entirety and replacing it with the following:
“Events
of Default include: (i) default for 30 days in the payment when due of interest
on, or Liquidated Damages, if any, with respect to the Notes; (ii) default
in
the payment when due of the principal of, or premium, if any, on, the Notes
when
the same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise; and (iii) certain events
of
bankruptcy or insolvency with respect to the Company.”
ARTICLE
FIVE
SECTION
5.01 Effectiveness of Amendments to Indenture
This
Supplemental Indenture will become effective immediately upon its execution
and
delivery but the amendments in such Supplemental Indenture set forth in Articles
Two through Four hereof will only become operative immediately prior to the
acceptance for payment of all Notes that are validly tendered (and not validly
withdrawn) on or prior to the Consent Payment Deadline (as defined in the
Statement).
SECTION
5.02 Continuing Effect of Indenture
Except
as
expressly provided herein, all of the terms, provisions and conditions of the
Indenture and the Notes shall remain in full force and effect.
SECTION
5.03 Construction of Supplemental Indenture
This
Supplemental Indenture is executed as and shall constitute an indenture
supplemental to the Indenture and shall be construed in connection with and
as
part of the Indenture. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION
5.04 Trust Indenture Act Controls
If
any
provision of this Supplemental Indenture limits, qualifies or conflicts with
another provision of this Supplemental Indenture or the Indenture that is
required to be included by the Trust Indenture Act of 1939 as in force at the
date as of which this Supplemental Indenture is executed, the provision required
by said Act shall control.
SECTION
5.05 Trustee Disclaimer
The
recitals contained in this Supplemental Indenture shall be taken as the
statements of the Company and the Guarantor, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture.
SECTION
5.06 Counterparts
This
Supplemental Indenture may be executed in any number of counterparts, each
of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the day and year first above written.
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THE
GSI GROUP, INC.
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By:
/s/ Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Chairman
and CEO
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GSI
HOLDINGS CORP
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By:
/s/ Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Chairman
and CEO
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U.S.
BANK NATIONAL ASSOCIATION, as Trustee
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By:
/s/ Xxxxxxx Xxxxxxxx
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Name:Xxxxxxx
Xxxxxxxx
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Title:Vice
President
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