EXHIBIT 99.7
INDENTURE, DATED AUGUST 22, 2002
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URS CORPORATION,
ISSUER
THE SUBSIDIARY GUARANTORS
(AS DEFINED HEREIN),
SUBSIDIARY GUARANTORS
AND
U.S. BANK, N.A.
TRUSTEE
INDENTURE
DATED AS OF AUGUST 22, 2002
11 1/2% SENIOR NOTES DUE 2009
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CROSS-REFERENCE TABLE
---------------------
TIA Sections Indenture Sections
Section 310(a)(1).........................................................7.10
(a)(2)....................................................................7.10
(b).................................................................7.03; 7.08
Section 311(a)............................................................7.03
(b).......................................................................7.03
Section 312(a)............................................................2.05
(b)......................................................................11.02
(c)......................................................................11.02
Section 313(a)............................................................7.06
(b)(2)....................................................................7.07
(c)..........................................................7.05; 7.06; 11.02
(d).......................................................................7.06
Section 314(a).....................................................4.17; 11.02
(a)(4).............................................................4.16; 11.02
(c)(2)...................................................................11.03
(e)................................................................4.16; 11.04
Section 315(a)............................................................7.02
(b)................................................................7.05; 11.02
(c).......................................................................7.05
(d).......................................................................7.02
(e).......................................................................6.11
Section 316(a)(1)(A)......................................................6.05
(a)(1)(B).................................................................6.04
(b).......................................................................6.07
(c).......................................................................9.03
Section 317(a)(1).........................................................6.08
(a)(2)....................................................................6.09
(b).......................................................................2.04
Section 318(a)...........................................................11.01
(c)......................................................................11.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.................................................1
SECTION 1.02 Incorporation by Reference of Trust Indenture Act..........23
SECTION 1.03 Rules of Construction......................................24
ARTICLE TWO
THE NOTES
SECTION 2.01 Form and Dating............................................24
SECTION 2.02 Execution and Authentication...............................24
SECTION 2.03 Registrar and Paying Agent.................................25
SECTION 2.04 Paying Agent To Hold Money in Trust........................25
SECTION 2.05 Noteholder Lists...........................................26
SECTION 2.06 Transfer and Exchange......................................26
SECTION 2.07 Replacement Notes..........................................26
SECTION 2.08 Outstanding Notes..........................................26
SECTION 2.09 Temporary Notes............................................27
SECTION 2.10 Cancellation...............................................27
SECTION 2.11 Overdue Interest...........................................27
SECTION 2.12 CUSIP Numbers..............................................27
SECTION 2.13 Issuance of Additional Notes...............................27
ARTICLE THREE
REDEMPTION
SECTION 3.01 Right of Redemption........................................28
SECTION 3.02 Notices to Trustee.........................................28
SECTION 3.03 Selection of Notes to Be Redeemed..........................28
SECTION 3.04 Notice of Redemption.......................................29
SECTION 3.05 Effect of Notice of Redemption.............................29
SECTION 3.06 Deposit of Redemption Price................................30
SECTION 3.07 Payment of Notes Called for Redemption.....................30
SECTION 3.08 Notes Redeemed in Part.....................................30
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Notes...........................................30
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SECTION 4.02 Maintenance of Office or Agency............................30
SECTION 4.03 Limitation on Incurrence of Indebtedness...................31
SECTION 4.04 Limitation on Restricted Payments..........................33
SECTION 4.05 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries..........................37
SECTION 4.06 Limitation on Issuances of Guarantees by Restricted
Subsidiaries...............................................39
SECTION 4.07 Limitation on Transactions with Shareholders and
Affiliates.................................................40
SECTION 4.08 Limitation on Liens........................................41
SECTION 4.09 Limitation on Sale/Leaseback Transactions..................41
SECTION 4.10 Limitation on Asset Sales..................................41
SECTION 4.11 Repurchase of Notes upon a Change of Control...............43
SECTION 4.12 Existence..................................................44
SECTION 4.13 Payment of Taxes...........................................44
SECTION 4.14 Maintenance of Properties and Insurance....................44
SECTION 4.15 Notice of Defaults.........................................45
SECTION 4.16 Compliance Certificates....................................45
SECTION 4.17 Commission Reports and Reports to Holders..................45
SECTION 4.18 Waiver of Stay, Extension or Usury Laws....................46
SECTION 4.19 Designation of "Designated Senior Indebtedness"............46
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge, Etc................................46
SECTION 5.02 Successor Substituted......................................47
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default..........................................47
SECTION 6.02 Acceleration...............................................48
SECTION 6.03 Other Remedies.............................................49
SECTION 6.04 Waiver of Past Defaults....................................49
SECTION 6.05 Control by Majority........................................49
SECTION 6.06 Limitation on Suits........................................50
SECTION 6.07 Rights of Holders to Receive Payment.......................50
SECTION 6.08 Collection Suit by Trustee.................................50
SECTION 6.09 Trustee May File Proofs of Claim...........................50
SECTION 6.10 Priorities.................................................51
SECTION 6.11 Undertaking for Costs......................................51
SECTION 6.12 Restoration of Rights and Remedies.........................51
SECTION 6.13 Rights and Remedies Cumulative.............................51
SECTION 6.14 Delay or Omission Not Waiver...............................52
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01 General.................................................52
SECTION 7.02 Certain Rights of Trustee...............................52
SECTION 7.03 Individual Rights of Trustee............................53
SECTION 7.04 Trustee's Disclaimer....................................53
SECTION 7.05 Notice of Default.......................................53
SECTION 7.06 Reports by Trustee to Holders...........................53
SECTION 7.07 Compensation and Indemnity..............................54
SECTION 7.08 Replacement of Trustee..................................54
SECTION 7.09 Successor Trustee by Merger, Etc........................55
SECTION 7.10 Eligibility.............................................55
SECTION 7.11 Money Held in Trust.....................................55
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of Company's Obligations....................56
SECTION 8.02 Defeasance and Discharge of Indenture...................56
SECTION 8.03 Defeasance of Certain Obligations.......................58
SECTION 8.04 Application of Trust Money..............................59
SECTION 8.05 Repayment to Company....................................59
SECTION 8.06 Reinstatement...........................................59
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders..............................60
SECTION 9.02 With Consent of Holders.................................60
SECTION 9.03 Revocation and Effect of Consent........................61
SECTION 9.04 Notation on or Exchange of Notes........................62
SECTION 9.05 Trustee to Sign Amendments, Etc.........................62
SECTION 9.06 Conformity with Trust Indenture Act.....................62
ARTICLE TEN
NOTE GUARANTEES
SECTION 10.01 Note Guarantee..........................................62
SECTION 10.02 Obligations Unconditional...............................64
SECTION 10.03 Release of Note Guarantees..............................64
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SECTION 10.04 Notice to Trustee........................................65
SECTION 10.05 This Article Not to Prevent Events of Default............65
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act of 1939..............................65
SECTION 11.02 Notices..................................................65
SECTION 11.03 Certificate and Opinion as to Conditions Precedent.......66
SECTION 11.04 Statements Required in Certificate or Opinion............66
SECTION 11.05 Rules by Trustee, Paying Agent or Registrar..............67
SECTION 11.06 Payment Date Other Than a Business Day...................67
SECTION 11.07 Governing Law............................................67
SECTION 11.08 No Adverse Interpretation of Other Agreements............67
SECTION 11.09 No Recourse Against Others...............................67
SECTION 11.10 Successors...............................................67
SECTION 11.11 Duplicate Originals......................................67
SECTION 11.12 Separability.............................................67
SECTION 11.13 Table of Contents, Headings, Etc.........................67
SCHEDULE I - Subsidiary Guarantors
RULE 144A/REGULATION S APPENDIX
EXHIBIT 1 - Form Of Initial Note
EXHIBIT A - Form Of Exchange Note Or Private Exchange Note
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INDENTURE, dated as of August 22, 2002, among URS CORPORATION, a
Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS (as defined
herein), as guarantors (the "Subsidiary Guarantors") and U.S. BANK,N.A., as
trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance initially of $200,000,000 aggregate
principal amount of the Company's 11 1/2% Senior Notes due 2009 and, if and when
issued pursuant to a registered exchange for Initial Notes, the Company's
Exchange Notes and, if and when issued pursuant to a private exchange for
Initial Notes, the Company's Private Exchange Notes. All things necessary to
make this Indenture a valid agreement of the Company and each Subsidiary
Guarantor, in accordance with its terms, have been done, and the Company and
each Subsidiary Guarantor have done all things necessary to make the Notes, when
executed by the Company and each Subsidiary Guarantor and authenticated and
delivered by the Trustee hereunder and duly issued by the Company, valid
obligations of the Company and each Subsidiary Guarantor as hereinafter
provided.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by a Restricted Subsidiary; provided that Indebtedness of
such Person which is redeemed, defeased, retired or otherwise repaid at the time
of or immediately upon consummation of the transactions by which such Person
becomes a Restricted Subsidiary or such Asset Acquisition shall not be Acquired
Indebtedness.
"Additional Notes" has the meaning provided in Section 2.13.
"Adjusted Consolidated Net Income" means, for any period, the aggregate
net income (or loss) of the Company and its Restricted Subsidiaries for such
period determined in conformity with GAAP; provided that the following items
shall be excluded in computing Adjusted Consolidated Net Income (without
duplication):
(i) the net income (or loss) of any Person that is not a
Restricted Subsidiary, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any Restricted Subsidiary by such
Person during such period;
(ii) solely for purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (C) of the first paragraph of
Section 4.04, the net income (or loss) of any Person accrued
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prior to the date it becomes a Restricted Subsidiary or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are acquired by the
Company or any of its Restricted Subsidiaries;
(iii) the net income of any Restricted Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted by the
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Restricted Subsidiary;
(iv) any gains or losses (in each case on an after-tax basis)
attributable to sales of assets outside the ordinary course of business of the
Company and its Restricted Subsidiaries;
(v) solely for purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (C) of the first paragraph of
Section 4.04, any amount paid or accrued as dividends on Preferred Stock of the
Company owned by Persons other than the Company and any of its Restricted
Subsidiaries;
(vi) any non-cash compensation expense incurred in connection
with the exercise of or paid or payable with Capital Stock (other than
Disqualified Stock) of the Company or any options, warrants or other rights to
acquire Capital Stock (other than Disqualified Stock) of the Company;
(vii) writeoffs of intangible assets, including research and
development, relating to assets acquired by the Company and its Restricted
Subsidiaries if such writeoffs are done in accordance with GAAP at the time of
or within one year after such acquisition; and
(viii) all extraordinary gains and extraordinary losses (in each
case on an after-tax basis).
"Adjusted Net Assets" has the meaning provided in Section 10.01.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Co-Registrar, Paying Agent or
authenticating agent.
"Appendix" has the meaning provided in Section 2.01.
"Asset Acquisition" means (i) an investment by the Company or any of its
Restricted Subsidiaries in any other Person pursuant to which such Person shall
become a Restricted Subsidiary or shall be merged into or consolidated with the
Company or any of its Restricted Subsidiaries; provided that such Person's
primary business is related, ancillary or complementary to the businesses of the
Company and its Restricted Subsidiaries on the date of such investment, as
determined in good faith by the Board of Directors or a Senior Officer of the
Company, whose determination shall be conclusive, or (ii) an acquisition by the
Company or any of its Restricted Subsidiaries of the property and assets of any
Person other than the Company or any of its Restricted Subsidiaries that
constitute substantially all of a division or line of business of such Person;
provided that the
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property and assets acquired are related, ancillary or complementary to the
businesses of the Company and its Restricted Subsidiaries on the date of such
acquisition, as determined in good faith by the Board of Directors or a Senior
Officer of the Company, whose determination shall be conclusive.
"Asset Disposition" means the sale or other disposition by the Company
or any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of
any Restricted Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any of its
Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including by
way of merger, consolidation or sale-leaseback transaction) in one transaction
or a series of related transactions by the Company or any of its Restricted
Subsidiaries to any Person other than the Company or any of its Restricted
Subsidiaries of:
(i) all or any of the Capital Stock of any Restricted
Subsidiary;
(ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries;
or
(iii) any other property and assets (other than the Capital Stock
or other Investment in an Unrestricted Subsidiary) of the Company or any of its
Restricted Subsidiaries outside the ordinary course of business of the Company
or such Restricted Subsidiary and in each case, that is not governed by the
provisions of this Indenture applicable to mergers, consolidations and sales of
assets of the Company; provided that "Asset Sale" shall not include:
(a) any sales or other dispositions of inventory,
receivables and other current assets, including cash and Temporary Cash
Investments;
(b) any sale, transfer, assignment or other disposition of
property that is damaged, worn out, obsolete or no longer suitable for use in
the ordinary course of business;
(c) any sale, transfer, assignment or other disposition of
assets having a fair market value of less than $2 million;
(d) any sales, transfers, assignments or other
dispositions of assets constituting a Permitted Investment or Restricted Payment
permitted to be made under Section 4.04; or
(e) the granting of a Lien on any property or assets
permitted by this Indenture.
"Assumed EG&G Debt" means all Indebtedness outstanding on the Closing
Date (other than Indebtedness being repaid on the Closing Date) of Carlyle-EG&G
Holdings Corp. and Lear Siegler Services, Inc. and their respective
Subsidiaries.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means, as
at the time of determination, the present value (discounted at the interest rate
borne by the Notes, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended); provided, however, that if such Sale/Leaseback Transaction results in
a Capital Lease Obligation, the amount of Indebtedness represented thereby will
be determined in accordance with the definition of "Capital Lease Obligation".
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"Average Life" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
"Board of Directors" means the board of directors of the Company or any
committee thereof duly authorized to act for such board of directors.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all Common
Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means, as applied to any Person, the
discounted present value of the rental obligations under a Capitalized Lease to
the extent such obligations would appear as a liability upon the consolidated
balance sheet of such Person in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty. For purposes of Section 4.08, a
Capital Lease Obligation shall be deemed to be secured by a Lien on the property
being leased.
"Change of Control" means such time as (1) a "person" or "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than one
or more Permitted Holders, becomes the ultimate "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) of more than 35% of the total voting power
of the Voting Stock of the Company on a fully diluted basis, and the Permitted
Holders beneficially own (as defined above) in the aggregate a lesser percentage
of the total voting power of the Voting Stock of the Company, (2) during any
period of 12 consecutive months after the Closing Date, individuals who at the
beginning of any such 12-month period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the Company
was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved, including new directors
designated in or provided for in an agreement regarding the merger,
consolidation or sale, transfer or other conveyance, of all or substantially all
of the assets of the Company, if such agreement was approved by a vote of such
majority of directors) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office, or (3) a change of control
occurs under the June 1999 Senior Subordinated Notes Indenture.
"Closing Date" means the date on which the Notes are originally issued
under this Indenture.
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"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties at
such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's equity, other than Preferred Stock of
such Person, whether outstanding on the Closing Date or issued thereafter,
including, without limitation, all series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the name of
the Company (i) by its Chairman, a Vice Chairman, its President, Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer or a Vice President
and (ii) by its Treasurer, an Assistant Treasurer, its Comptroller, its
Secretary or an Assistant Secretary and delivered to the Trustee; provided,
however, that such written request or order may be signed by any two of the
officers or directors listed in clause (i) above in lieu of being signed by one
of such officers or directors listed in such clause (i) and one of the officers
listed in clause (ii) above.
"Consolidated EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period plus, to the extent such amount was deducted in
calculating such Adjusted Consolidated Net Income:
(i) Consolidated Interest Expense;
(ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary gains or losses or sales of assets);
(iii) depreciation expense;
(iv) amortization expense; and
(v) all other non-cash items reducing Adjusted Consolidated
Net Income (other than items that will require cash payments and for which an
accrual or reserve is, or is required by GAAP, to be made), less all non-cash
items increasing Adjusted Consolidated Net Income (it being understood that such
items do not include the accrual of revenues in the ordinary course of
business), all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP;
provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, Consolidated EBITDA shall be reduced (to the extent not otherwise
reduced in accordance with GAAP) by an amount equal to (a) the amount of the
Adjusted Consolidated Net Income attributable to such Restricted Subsidiary
multiplied by (b) the percentage ownership interest in the income of such
Restricted Subsidiary not owned on the last day of such period by the Company or
any of its Restricted Subsidiaries.
"Consolidated Interest Expense" means (without duplication), for any
period, the aggregate amount of interest in respect of Indebtedness (including,
without limitation, amortization of original issue discount on any Indebtedness
and the interest portion of any deferred payment obligation, calculated in
accordance with the effective interest method of accounting; all commissions,
discounts and other fees and charges owed with
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respect to letters of credit and bankers' acceptance financing; the net costs
associated with Interest Rate Agreements; and Indebtedness that is Guaranteed or
secured by the Company or any of its Restricted Subsidiaries), Preferred Stock
dividends in respect of Preferred Stock of a Restricted Subsidiary and all but
the principal component of rentals in respect of Capitalized Lease Obligations
paid, accrued or scheduled to be paid or to be accrued by the Company and its
Restricted Subsidiaries during such period; excluding, however, (i) any amount
of such interest of any Restricted Subsidiary if the net income of such
Restricted Subsidiary is excluded in the calculation of Adjusted Consolidated
Net Income pursuant to clause (iii) of the definition thereof (but only in the
same proportion as the net income of such Restricted Subsidiary is excluded from
the calculation of Adjusted Consolidated Net Income pursuant to clause (iii) of
the definition thereof) and (ii) any premiums, fees and expenses (and any
amortization thereof) payable in connection with the EG&G Acquisition and the
financing of the EG&G Acquisition, all as determined on a consolidated basis
(without taking into account Unrestricted Subsidiaries) in conformity with GAAP.
For purposes of the preceding sentence, Preferred Stock dividends shall be
deemed to be an amount equal to the actual dividends paid divided by one minus
the combined federal, state, local and foreign income tax rate applicable to the
Company and its Subsidiaries (expressed as a decimal).
"Consolidated Secured Debt Ratio" as of any date of determination means,
the ratio of (x) total consolidated Indebtedness of the Company and its
Restricted Subsidiaries that is secured by Liens as of the end of the most
recent fiscal quarter for which financial reports have been filed with the
Commission or provided to the Trustee, to (y) the aggregate amount of
Consolidated EBITDA for the then most recent four fiscal quarters for which
reports have been filed with the Commission or provided to the Trustee, in each
case with appropriate pro forma adjustments to consolidated Indebtedness and
Consolidated EBITDA as follows:
(A) pro forma effect shall be given to any Indebtedness Incurred or
repaid during the Reference Period (as defined in the definition
of "Fixed Charge Coverage Ratio") commencing on the first day of
the Four Quarter Period (as defined in the definition of "Fixed
Charge Coverage Ratio") and ending on and including the
Transaction Date (other than Indebtedness Incurred or repaid
under a revolving credit or similar arrangement to the extent of
the commitment thereunder (or under any predecessor revolving
credit or similar arrangement) in effect on the last day of such
Four Quarter Period unless any portion of such Indebtedness is
projected, in the reasonable judgment of the senior management
of the Company, to remain outstanding for a period in excess of
12 months from the date of the Incurrence thereof), in each case
as if such Indebtedness had been Incurred or repaid on the first
day of the Reference Period;
(B) pro forma effect shall be given to Asset Dispositions and Asset
Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur
during such Reference Period as if they had occurred and such
proceeds had been applied on the first day of such Reference
Period; and
(C) pro forma effect shall be given to asset dispositions and asset
acquisitions (including giving pro forma effect to the
application of proceeds of any asset disposition) that have been
made by any Person that has become a Restricted Subsidiary or
has been merged with or into the Company or any Restricted
Subsidiary during such Reference Period and that would have
constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions
were Asset Dispositions or Asset Acquisitions that occurred on
the first day of such Reference Period; provided that to the
extent that clause (B) or (C) of this sentence requires that pro
forma effect be given to an
6
Asset Acquisition or Asset Disposition, such pro forma
calculation shall be based upon the four full fiscal quarters
immediately preceding the Transaction Date of the Person, or
division or line of business of the Person, that is acquired or
disposed for which financial information is available.
"Consolidated Senior Debt Ratio" as of any date of determination means,
the ratio of (x) (A) the total consolidated Indebtedness of the Company and its
Restricted Subsidiaries that is Senior Indebtedness minus (B) the total
consolidated cash and Temporary Cash Investments of the Company and its
Restricted Subsidiaries, in each case as of the end of the most recent fiscal
quarter for which financial reports have been filed with the Commission or
provided to the Trustee, to (y) the aggregate amount of Consolidated EBITDA for
the then most recent four fiscal quarters for which reports have been filed with
the Commission or provided to the Trustee, in each case with appropriate pro
forma adjustments to the amounts of consolidated Indebtedness, consolidated cash
and Temporary Cash Investments and Consolidated EBITDA as follows:
(A) pro forma effect shall be given to any Indebtedness Incurred or
repaid during the Reference Period commencing on the first day
of the Four Quarter Period and ending on and including the
Transaction Date (other than Indebtedness Incurred or repaid
under a revolving credit or similar arrangement to the extent of
the commitment thereunder (or under any predecessor revolving
credit or similar arrangement) in effect on the last day of such
Four Quarter Period unless any portion of such Indebtedness is
projected, in the reasonable judgment of the senior management
of the Company, to remain outstanding for a period in excess of
12 months from the date of the Incurrence thereof), in each case
as if such Indebtedness had been Incurred or repaid on the first
day of the Reference Period;
(B) pro forma effect shall be given to Asset Dispositions and Asset
Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur
during such Reference Period as if they had occurred and such
proceeds had been applied on the first day of such Reference
Period; and
(C) pro forma effect shall be given to asset dispositions and asset
acquisitions (including giving pro forma effect to the
application of proceeds of any asset disposition) that have been
made by any Person that has become a Restricted Subsidiary or
has been merged with or into the Company or any Restricted
Subsidiary during such Reference Period and that would have
constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions
were Asset Dispositions or Asset Acquisitions that occurred on
the first day of such Reference Period; provided that to the
extent that clause (B) or (C) of this sentence requires that pro
forma effect be given to an Asset Acquisition or Asset
Disposition, such pro forma calculation shall be based upon the
four full fiscal quarters immediately preceding the Transaction
Date of the Person, or division or line of business of the
Person, that is acquired or disposed for which financial
information is available.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity plus, to the extent not included, any Preferred Stock of
the Company as set forth on the most recently available quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries (which
shall be as of a date not more than 120 days prior to the date of such
computation, and which shall not take into account Unrestricted Subsidiaries),
less any amounts attributable to Disqualified Stock or any equity security
convertible into or
7
exchangeable for Indebtedness, the cost of treasury stock and the principal
amount of any promissory notes receivable from the sale of the Capital Stock of
the Company or any of its Restricted Subsidiaries, each item to be determined in
conformity with GAAP (excluding the effects of foreign currency exchange
adjustments under Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 52).
"Convertible Subordinated Debentures" means the 6 1/2% Convertible
Subordinated Debentures due 2012 of the Company issued pursuant to an Indenture
dated as of February 15, 1987 between the Company and First Interstate Bank of
California, as amended, and outstanding on the Closing Date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at the address set forth in Section 11.02 herein.
"Credit Agreement" means the credit agreement dated as of the Closing
Date by and among the Company, certain of its Subsidiaries, certain financial
institutions and Credit Suisse First Boston, as administrative agent, and
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, as such credit agreement and/or
related documents may be amended, restated, supplemented, renewed, refinanced,
extended, replaced, restructured or otherwise modified from time to time
regardless of whether with the same agent, trustee, representative lenders or
holders, including any agreement (i) extending the maturity of any Indebtedness
incurred thereunder or contemplated thereby, (ii) adding or deleting borrowers
or guarantors thereunder, so long as borrowers and guarantors include one or
more of the Company and its Subsidiaries and their respective successors and
assigns, (iii) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder, or (iv) adding facilities available for
borrowing thereunder.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Dames & Moore" means Dames & Moore Group, a Delaware corporation.
"D&M Acquisition" means the consummation of (x) the tender offer by
Demeter Acquisition Corporation for all of the outstanding shares of capital
stock of Dames & Moore and (y) the merger of Demeter Acquisition Corporation
with and into Dames & Moore.
"D&M Financing" means the transactions entered into by the Company and
its Restricted Subsidiaries to finance the D&M Acquisition, including (v) the
sale of the Senior Subordinated Notes, (w) the establishment of the credit
facilities in connection with the D&M Acquisition, (x) the issuance and sale of
Preferred Stock to RCBA Strategic Partners, L.P. in connection with the D&M
Acquisition, (y) the issuance and sale of senior subordinated increasing rate
notes of the Company upon consummation of the tender offer for the stock of
Dames & Moore and (z) the repayment of Indebtedness in connection with the D&M
Acquisition and the sale of the Senior Subordinated Notes.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Demeter Acquisition Corporation" means Demeter Acquisition Corporation,
a Delaware corporation and Wholly Owned Subsidiary of the Company.
8
"Depository" means The Depository Trust Company, its nominees, and their
respective successors.
"Disqualified Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of the Notes, (ii) redeemable at the option of the holder of
such class or series of Capital Stock at any time prior to the Stated Maturity
of the Notes or (iii) convertible into or exchangeable for Capital Stock
referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Notes; provided that any Capital
Stock that would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to repurchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the Stated Maturity of the Notes shall not constitute
Disqualified Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions contained in Section 4.10 and Section 4.11 and
such Capital Stock specifically provides that such Person will not repurchase or
redeem any such stock pursuant to such provision prior to the Company's
repurchase of such Notes as are required to be repurchased pursuant to Section
4.10 and Section 4.11. For the avoidance of doubt, the Series D Preferred Stock
and the Series E Preferred Stock shall not constitute Disqualified Stock.
"EG&G Acquisition" means the acquisition by the Company of Carlyle-EG&G
Holdings Corp. and Lear Siegler Services, Inc. pursuant to the Agreement and
Plan of Merger dated July 16, 2002, among the Company and certain of its
subsidiaries, Carlyle-EG&G Holdings Corp., Lear Siegler Services, Inc. and Eagle
Technical Services Holdings, L.L.C.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.10.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" has the meaning provided in the Appendix.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Board of Directors or a Senior Officer of the
Company, whose determination shall be conclusive; provided that if the non cash
amount exceeds $10 million, such amount shall be determined in good faith by the
Board of Directors, whose determination shall be conclusive if evidenced by a
Board Resolution.
"Fixed Charge Coverage Ratio" means, on any Transaction Date, the ratio
of (i) the aggregate amount of Consolidated EBITDA for the then most recent four
fiscal quarters prior to such Transaction Date for which reports have been filed
with the Commission or provided to the Trustee (the "Four Quarter Period") to
(ii) the aggregate Consolidated Interest Expense during such Four Quarter
Period. In making the preceding calculation,
(A) pro forma effect shall be given to any Indebtedness Incurred or
repaid during the period (the "Reference Period") commencing on
the first day of the Four Quarter Period and ending on and
including the Transaction Date (other than Indebtedness Incurred
or repaid under a revolving credit or similar arrangement to the
extent of the commitment thereunder (or under any predecessor
revolving credit or similar arrangement) in effect on the last
day of such Four Quarter Period unless any portion of such
Indebtedness is projected, in the reasonable judgment
9
of the senior management of the Company, to remain outstanding
for a period in excess of 12 months from the date of the
Incurrence thereof), in each case as if such Indebtedness had
been Incurred or repaid on the first day of the Reference
Period;
(B) Consolidated Interest Expense attributable to interest on any
Indebtedness (whether existing or being Incurred) computed on a
pro forma basis and bearing a floating interest rate shall be
computed as if the rate in effect on the Transaction Date
(taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a
remaining term in excess of 12 months or, if shorter, at least
equal to the remaining term of such Indebtedness) had been the
applicable rate for the entire period;
(C) pro forma effect shall be given to Asset Dispositions and Asset
Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur
during such Reference Period as if they had occurred and such
proceeds had been applied on the first day of such Reference
Period; and
(D) pro forma effect shall be given to asset dispositions and asset
acquisitions (including giving pro forma effect to the
application of proceeds of any asset disposition) that have been
made by any Person that has become a Restricted Subsidiary or
has been merged with or into the Company or any Restricted
Subsidiary during such Reference Period and that would have
constituted Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions
were Asset Dispositions or Asset Acquisitions that occurred on
the first day of such Reference Period; provided that to the
extent that clause (C) or (D) of this sentence requires that pro
forma effect be given to an Asset Acquisition or Asset
Disposition, such pro forma calculation shall be based upon the
four full fiscal quarters immediately preceding the Transaction
Date of the Person, or division or line of business of the
Person, that is acquired or disposed for which financial
information is available.
"Foreign Subsidiary" means any Subsidiary of the Company that is an
entity which is a controlled foreign corporation under Section 957 of the
Internal Revenue Code.
"Funding Subsidiary Guarantor" has the meaning provided in Section
10.01.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Closing Date, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations contained or referred
to in this Indenture shall be computed in conformity with GAAP applied on a
consistent basis, except that calculations made for purposes of determining
compliance with the terms of the covenants and with other provisions of this
Indenture shall be made without giving effect to (i) the amortization of any
expenses incurred in connection with the D&M Acquisition or the D&M Financing
and (ii) except as otherwise provided, the amortization of any amounts required
or permitted by Accounting Principles Board Opinion Nos. 16 and 17.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and,
without limiting the generality of the foregoing, any
10
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services (unless such purchase arrangements are on arm's-length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Holder" or "Noteholder" means a Person in whose name a Note is
registered on the Registrar's books.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Acquired Indebtedness; provided that
neither the accrual of interest, the accretion of original issue discount nor
the issuance of pay-in-kind securities as an interest or dividend payment shall
be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication):
(i) all indebtedness of such Person for borrowed money to the
extent such indebtedness would appear as a liability upon the consolidated
balance sheet of such Person in accordance with GAAP;
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments to the extent such obligations
would appear as a liability upon the consolidated balance sheet of such Person
in accordance with GAAP;
(iii) all obligations of such Person in respect of banker's
acceptances, letters of credit or other similar instruments (including
reimbursement obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (i) or (ii) above or (v), (vi)
or (vii) below) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement);
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, which purchase price is due more
than six months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services, except Trade
Payables;
(v) all Capitalized Lease Obligations and all Attributable Debt
in respect of Sale/Leaseback Transactions entered into by such Person;
(vi) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, regardless of whether such Indebtedness is assumed by such
Person; provided that the amount of such Indebtedness shall be the lesser of (A)
the fair market value of such asset at such date of determination and (B) the
amount of such Indebtedness so secured;
11
(vii) all Indebtedness of other Persons Guaranteed by such
Person to the extent such Indebtedness is Guaranteed by such Person;
(viii) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Stock of
such Person, and all obligations to redeem or repurchase Preferred Stock of a
Restricted Subsidiary; and
(ix) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements (other than
Currency Agreements and Interest Rate Agreements designed solely to protect the
Company or its Restricted Subsidiaries against fluctuations in foreign currency
exchange rates or interest rates and that do not increase the Indebtedness of
the obligor outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder).
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation, provided
(A) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP,
(B) that money borrowed and set aside at the time of the
Incurrence of any Indebtedness in order to prefund the payment of the interest
on such Indebtedness shall not be deemed to be "Indebtedness" so long as such
money is held to secure the payment of such interest,
(C) that the amount of Indebtedness at any time of any
Preferred Stock shall be the greater of its voluntary or involuntary liquidation
preference and the maximum fixed redemption or repurchase price in respect
thereof,
(D) that Indebtedness shall not include:
(v) obligations resulting from the endorsement of
negotiable instruments for collection in the ordinary course of business,
(w) any liability for federal, state, local or
other taxes,
(x) obligations under performance, bid, surety,
appeal or similar bonds, completion guarantees or warranty or contractual
service obligations provided in the ordinary course of business,
(y) obligations arising in the ordinary course of
business out of standby letters of credit or similar investments covering
workers' compensation, errors and omissions insurance, bid and performance
appeal or similar obligations to the extent such letters of credit are not drawn
upon or, if drawn upon, to the extent such drawing is reimbursed no later than
the third Business Day following receipt by the issuer of such letters of credit
a demand for reimbursement, or
12
(z) obligations pursuant to agreements providing
for indemnification, adjustment of purchase price or similar obligations, or
Guarantees or letters of credit, performance, bid, surety, appeal or similar
bonds securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in any case Incurred in connection
with the disposition of any business, assets or Restricted Subsidiary (other
than Guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), so long as the principal amount does not to exceed
the gross proceeds actually received by the Company or any Restricted Subsidiary
in connection with such disposition.
"Indenture" means this indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this indenture entered into pursuant to the applicable provisions of this
indenture.
"Initial Notes" has the meaning provided in the Appendix.
"Interest Payment Date" means each semiannual interest payment date on
March 15 and September 15 of each year, commencing March 15, 2003.
"Interest Rate Agreement" means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar
agreement or arrangement.
"Investment" in any Person means any direct or indirect advance, loan or
other extension of credit (including, without limitation, by way of Guarantee or
similar arrangement; but excluding advances to customers or suppliers in the
ordinary course of business that are, in conformity with GAAP, recorded as
accounts receivable, prepaid expenses or deposits on the balance sheet of the
Company or its Restricted Subsidiaries or endorsements for collection or deposit
arising in the ordinary course of business) or capital contribution to (by means
of any transfer of cash or other property to others or any payment for property
or services for the account or use of others), or any purchase or acquisition of
Capital Stock, bonds, notes, debentures or other similar instruments issued by,
such Person and shall include (i) the designation of a Restricted Subsidiary as
an Unrestricted Subsidiary and (ii) the retention of the Capital Stock (or any
other Investment) by the Company or any of its Restricted Subsidiaries, of (or
in) any Person that has ceased to be a Restricted Subsidiary. For purposes of
the definition of "Unrestricted Subsidiary" and Section 4.04, the amount of or a
reduction in an Investment shall be equal to the fair market value thereof at
the time such Investment is made or reduced.
"June 1999 Senior Subordinated Notes Indenture" means the indenture,
dated as of June 23, 1999, by and among the Company, as issuer, the subsidiary
guarantors named therein and Firstar Bank of Minnesota, N.A., as Trustee.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof or any agreement
to give any security interest).
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means:
13
(a) with respect to any Asset Sale, the proceeds of such Asset
Sale in the form of cash or cash equivalents (including Temporary Cash
Investments), including payments in respect of deferred payment obligations (to
the extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents (including Temporary Cash
Investments) and proceeds from the conversion of other property received when
converted to cash or cash equivalents (including Temporary Cash Investments),
net of:
(i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related to such
Asset Sale;
(ii) provisions for all taxes (regardless of whether such
taxes will actually be paid or are payable) as a result of such Asset Sale
without regard to the consolidated results of operations of the Company and its
Restricted Subsidiaries, taken as a whole;
(iii) payments made to repay Indebtedness or any other
obligation outstanding at the time of such Asset Sale that either (x) is secured
by a Lien on the property or assets sold or (y) is required to be paid as a
result of such sale; and
(iv) appropriate amounts to be provided by the Company or
any Restricted Subsidiary as a reserve against any liabilities associated with
such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as determined in conformity with GAAP; and
(b) with respect to any issuance or sale of, or capital
contribution in respect of, Capital Stock, the proceeds of such issuance or sale
or contribution in the form of cash or cash equivalents (including Temporary
Cash Investments), including payments in respect of deferred payment obligations
(to the extent corresponding to the principal, but not interest, component
thereof) when received in the form of cash or cash equivalents (including
Temporary Cash Investments) and proceeds from the conversion of other property
received when converted to cash or cash equivalents (including Temporary Cash
Investments), net of attorney's fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees incurred in connection with such issuance or sale and net of taxes
paid or payable as a result thereof.
"Note Guarantee" means any guarantee of the obligations of the Company
under this Indenture and the Notes by any Subsidiary Guarantor.
"Notes" or "Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Notes" shall
include the Initial Notes issued on the Closing Date, any Exchange Notes or
Private Exchange Notes to be issued and exchanged for any Initial Notes pursuant
to the Registration Rights Agreement and this Indenture and any Additional Notes
issued after the Closing Date under this Indenture. For purposes of this
Indenture, all Notes shall vote together as one series of Notes under this
Indenture.
"Offer to Purchase" means an offer to purchase Notes by the Company from
the Holders commenced by mailing a notice to the Trustee and each Holder
stating:
(i) the covenant pursuant to which the offer is being made and
that all Notes validly tendered will be accepted for payment on a pro rata
basis;
14
(ii) the purchase price and the date of purchase (which shall be
a Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Payment Date");
(iii) that any Note not tendered will continue to accrue interest
pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the Offer to Purchase
shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to
the Offer to Purchase will be required to surrender the Note, together with the
form entitled "Option of the Holder to Elect Purchase" on the reverse side of
the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day immediately preceding the
Payment Date;
(vi) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and
(vii) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or integral multiples thereof.
"Officer" means, with respect to the Company, (i) the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
any Vice President or the Chief Financial Officer and (ii) the Treasurer or any
Assistant Treasurer or the Secretary, Comptroller or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer listed
in clause (i) of the definition thereof and one Officer listed in clause (ii) of
the definition thereof or two officers listed in clause (i) of the definition
thereof. Each Officers' Certificate (other than certificates provided pursuant
to TIA Section 314(a)(4)) shall include the statements provided for in TIA
Section 314(e).
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, that meets the requirements
of Section 11.04 hereof. Each such Opinion of Counsel shall include the
statements provided for in TIA Section 314(e).
"Paying Agent" has the meaning provided in Section 2.03, except that,
for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"Payment Date" has the meaning provided in the definition of Offer to
Purchase.
"Permitted Holders" means TCG Holdings, L.L.C., Richard C. Blum &
Associates, L.P. and their respective Affiliates.
"Permitted Investment" means:
(i) an Investment in the Company, a Subsidiary Guarantor or a
Person which will, upon the making of such Investment, become a Subsidiary
Guarantor or be merged or consolidated with or into or
15
transfer or convey all or substantially all its assets to, the Company or a
Subsidiary Guarantor; provided that such person's primary business is related,
ancillary or complementary to the businesses of the Company and its Restricted
Subsidiaries on the date of such Investment, as determined in good faith by the
Board of Directors or a Senior Officer of the Company, whose determination shall
be conclusive;
(ii) cash and Temporary Cash Investments;
(iii) commission, entertainment, relocation, payroll, travel and
similar advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses in accordance with GAAP;
(iv) stock, obligations or securities received in satisfaction of
judgments or received in connection with the restructuring or workout of the
obligations of, or the bankruptcy of, suppliers, or customers, or received
pursuant to a plan of reorganization of any supplier or customer, in each case
in settlement of delinquent obligations or disputes with customers or suppliers;
(v) an Investment in an Unrestricted Subsidiary to the extent
consisting of an Investment in another Unrestricted Subsidiary;
(vi) Interest Rate Agreements and Currency Agreements designed
solely to protect the Company or its Restricted Subsidiaries against
fluctuations in interest rates or foreign currency exchange rates;
(vii) any of the Notes;
(viii) an Investment in a Restricted Subsidiary that is a Foreign
Subsidiary;
(ix) Investments received as non-cash consideration in connection
with an Asset Sale made in compliance with Section 4.10; and
(x) an Investment in a Restricted Subsidiary which is not a
Subsidiary Guarantor, provided that the aggregate amount of such Investments
under this clause (x) does not exceed $25 million plus the net reduction in
Investments made pursuant to this clause (x) resulting from distributions on or
repayments of such Investments or from the Net Cash Proceeds from the sale or
other disposition of any such Investment (except in each case, in order to avoid
duplication, to the extent any such payments or proceeds have been or would be
included in the calculation of Adjusted Consolidated Net Income for purposes of
clause (C)(1) of Section 4.04) or from such Person becoming a Subsidiary
Guarantor (valued in each case as provided in the definition of "Investments");
provided that the net reduction in any Investment shall not exceed the amount of
such Investment.
"Permitted Liens" means, with respect to any Person:
(1) Liens Incurred or pledges or deposits by such Person under worker's
compensation laws, unemployment insurance laws and other types of social
security or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to
which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent, in
each case Incurred in the ordinary course of business;
16
(2) Liens imposed by law, such as carriers', warehousemen's, mechanics',
suppliers', materialmen's, repairmen or other similar Liens, in each case for
sums not yet due or being contested in good faith by appropriate proceedings or
other Liens arising out of judgments or awards against such Person with respect
to which such Person shall then be proceeding with an appeal or other
proceedings for review and Liens arising solely by virtue of any statutory or
common law provision relating to banker's Liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided, however, that (A) such deposit
account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Company in excess of those set forth by
regulations promulgated by the Federal Reserve Board and (B) such deposit
account is not intended by the Company or any Subsidiary Guarantor to provide
collateral to the depository institution;
(3) Liens for property taxes not yet subject to penalties for
non-payment or which are being contested in good faith by appropriate
proceedings;
(4) Liens in favor of issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business; provided, however, that such letters of credit
do not constitute Indebtedness;
(5) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines, municipal and building ordinances
and other similar purposes, title defects or other irregularities, or zoning or
other restrictions as to the use of real property or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not Incurred in connection with Indebtedness and which do not in the
aggregate materially adversely affect the value of said properties or materially
impair their use in the operation of the business of such Person;
(6) Liens on assets or property purchased with Purchase Money
Indebtedness securing such Indebtedness;
(7) Liens to secure Indebtedness permitted by Section 4.03(a)(i) and
Hedging Obligations entered into in respect of amounts thereunder;
(8) Liens existing on the Closing Date;
(9) Liens on shares of Capital Stock of any Unrestricted Subsidiary to
secure Indebtedness of such Unrestricted Subsidiary, and Liens on property or
shares of Capital Stock of another Person at the time such other Person becomes
a Subsidiary of such Person; provided, however, that the Liens may not extend to
any other property owned by such Person or any of its Restricted Subsidiaries
(other than assets and property affixed or appurtenant thereto);
(10) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means of a
merger or consolidation with or into such Person or a Subsidiary of such Person;
provided, however, that the Liens may not extend to any other property owned by
such Person or any of its Restricted Subsidiaries (other than assets and
property affixed or appurtenant thereto);
(11) Liens securing Indebtedness or other obligations of a Subsidiary of
such Person owing to such Person or a Wholly Owned Subsidiary of such Person;
17
(12) Liens securing Hedging Obligations so long as such Hedging
Obligations relate to Indebtedness that is permitted to be Incurred under this
Indenture;
(13) any interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease;
(14) Liens on cash set aside at the time of the Incurrence of any
Indebtedness, or government securities purchased with such cash, in either case
to the extent that such cash or government securities prefund the payment of
interest on such Indebtedness and are held in an escrow account, security
account or other similar arrangement to be applied for such purpose;
(15) Liens arising from filing Uniform Commercial code financing
statements regarding operating leases entered into with such lessors in the
ordinary course of business;
(16) Liens arising out of conditional sale, title retention, consignment
or similar arrangements for the sale of goods or provision of services entered
into by the Company or any of its Restricted Subsidiaries in the ordinary course
of business in accordance with the past practices of the Company and its
Restricted Subsidiaries prior to the Closing Date;
(17) A Lien on the funds or securities deposited with the trustee under
the indenture relating to the Senior Subordinated Notes for the purpose of
defeasing or redeeming the Senior Subordinated Notes on or prior to its maturity
date to the extent permitted in the Indenture;
(18) Liens Incurred to secure obligations in respect of term loans or
revolving loans (including principal, premium, interest, penalties, fees,
indemnifications, reimbursements and other amounts relating thereto) under the
Credit Agreement; provided that, at the time of Incurrence and after giving
effect thereto, the Consolidated Secured Debt Ratio would be no greater than
3:1;
(19) Liens securing indebtedness which, together with all other
Indebtedness secured by Liens (excluding Liens permitted by clauses (1) through
(18) above or clause (20) below) at the time of determination, does not exceed
$25 million; and
(20) Liens to secure any refinancing (or successive refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred to in the
foregoing clause (6), (8), (9), (10) or (15); provided, however, that:
(A) such new Lien shall be limited to all or part of the same property
and assets that secured or, under the written agreements pursuant to which the
original Lien arose, could secure the original Lien (plus improvements and
accessions to, such property or proceeds or distributions thereof); and
(B) the Indebtedness secured by such Lien at such time is not increased
to any amount greater than the sum of (x) the outstanding principal amount or,
if greater, committed amount of the Indebtedness described under clause (6),
(8), (9), (10) or (15) at the time the original Lien became a Permitted Lien and
(y) an amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or replacement.
Notwithstanding the foregoing, "Permitted Liens" will not include any
Lien described in clause (6), (9) or (10) above to the extent such Lien applies
to any Replacement Assets acquired directly or indirectly from Net
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Cash Proceeds pursuant to Section 4.10. For purposes of this definition, the
term "Indebtedness" shall be deemed to include interest on such Indebtedness.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference equity, whether
outstanding on the Closing Date or issued thereafter, including, without
limitation, all series and classes of such preferred or preference stock.
"Principal" of a debt security, including the Notes, means the principal
amount due on the Stated Maturity as shown on such debt security.
"Private Exchange Notes" has the meaning provided in the Appendix.
"Purchase Money Indebtedness" of any Person means any Indebtedness,
including Capitalized Leases, of such Person to any seller or other Person,
which is Incurred to finance the acquisition, construction, installation or
improvement of any Replacement Assets and which is incurred concurrently with,
or within 180 days following, such acquisition, construction, installation or
improvement.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the price at which such Note is to be redeemed pursuant to this
Indenture.
"Registrar" has the meaning provided in Section 2.03.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Replacement Assets" means, on any date, property or assets (other than
current assets) of a nature or type or that are used or useful in a business (or
an Investment in a company having property or assets of a nature or type, or
engaged in a business) reasonably similar or related to the nature or type of
the property and assets of, or the business of, the Company and its Restricted
Subsidiaries existing on such date, as determined in good faith by the Board of
Directors or a Senior Officer of the Company, whose determination shall be
conclusive.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee in its corporate trust department customarily performing
functions similar to those performed by any of the above-designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
19
"Restricted Payments" has the meaning provided in Section 4.04.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to property
owned by the Company or a Subsidiary Guarantor on the Closing Date or thereafter
acquired by the Company or a Subsidiary Guarantor whereby the Company or a
Subsidiary Guarantor transfers such property to a Person and the Company or a
Subsidiary Guarantor leases it from such Person.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, and its successors.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.03.
"Senior Indebtedness" means the following obligations of the Company or
any Subsidiary Guarantor, whether outstanding on the Closing Date or thereafter
Incurred: (i) all Indebtedness and all other monetary obligations (including,
without limitation, expenses, fees, principal, interest (including any interest
accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim in such proceeding), reimbursement obligations
under letters of credit and indemnities payable in connection therewith) of the
Company under (or in respect of) the Credit Agreement or any Interest Rate
Agreement or Currency Agreement relating to the Indebtedness under the Credit
Agreement and (ii) all Indebtedness and all other monetary obligations of the
Company or any Subsidiary Guarantor (other than the Senior Subordinated Notes
and the Senior Subordinated Guarantees thereof, the Convertible Subordinated
Debentures and the Senior Subordinated Debentures), including principal and
interest on such Indebtedness, unless such Indebtedness, by its terms or by the
terms of any agreement or instrument pursuant to which such Indebtedness is
issued, is subordinated in right of payment to, the Notes or the Note
Guarantees; provided that (I) the term "Senior Indebtedness" shall not include
(a) any Indebtedness of the Company or any Subsidiary Guarantor that, when
Incurred, was without recourse to the Company or to such Subsidiary Guarantor,
(b) any Indebtedness of the Company or any Subsidiary Guarantor to a Subsidiary
of the Company, or to a joint venture in which the Company has an interest, (c)
any Indebtedness of the Company or any Subsidiary Guarantor, to the extent not
permitted by Section 4.03, (d) any repurchase, redemption or other obligation in
respect of Disqualified Stock, (e) any Indebtedness to any employee of the
Company or any of its respective Subsidiaries, (f) any liability for taxes owed
or owing by the Company or any Subsidiary Guarantor, or (g) any Trade Payables
and (II) for purposes of determining compliance with clause (2) of the proviso
in the first paragraph of Section 4.03(a) and clauses (viii), (ix) and (x) of
Section 4.03(a) and as used in the definition of "Consolidated Senior Debt
Ratio", the term "Senior Indebtedness" shall also include, to the extent not
otherwise included therein, obligations of such Person in respect of letters of
credit, banker's acceptances and similar instruments, whether or not drawn upon
and whether or not excluded by the provision of clause (iii) or (D)(y) of the
definition of "Indebtedness".
"Senior Officer" of any Person means the Chief Executive Officer,
President, Chief Operating Officer, Executive Vice President or Chief Financial
Officer of such Person.
"Senior Subordinated Debentures" means the 8 5/8% Senior Subordinated
Debentures due 2004 of the Company issued pursuant to the Indenture dated as of
March 16, 1989, between the Company and MTrust Corp., National Association, as
trustee, as amended.
20
"Senior Subordinated Notes" means the 12 1/4% Senior Subordinated Notes
issued under the June 1999 Senior Subordinated Notes Indenture.
"Series D Preferred Stock" means the Company's Series D Preferred Stock
issued in connection with the EG&G Acquisition.
"Series E Preferred Stock" means the Company's Series E Preferred Stock
into which the Series D Preferred Stock is convertible under certain
circumstances.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries would be a
"Significant Subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"Subsidiary Guarantee" has the meaning provided in Section 4.06.
"Subsidiary Guarantor" means each of the parties listed as such on
Schedule I hereto, and any Restricted Subsidiary that provides a Guarantee of
the Company's obligations under this Indenture and the Notes; provided, however,
that the term "Subsidiary Guarantor" shall not include any Person whose
Guarantee has been released in accordance with the provisions hereof.
"Temporary Cash Investment" means any of the following:
(i) direct obligations of the United States of America or any
agency thereof or obligations fully and unconditionally guaranteed by the United
States of America or any agency or instrumentality thereof maturing no more than
one year from the date of acquisition thereof;
(ii) time deposit accounts, certificates of deposit, bankers'
acceptances and money market deposits maturing within one year of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America, and which bank or trust
company has capital, surplus and undivided profits aggregating in excess of $100
million (or the foreign currency equivalent thereof) and has outstanding debt
which is rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act) or any money-market fund sponsored by a registered
broker dealer or mutual fund distributor;
(iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above entered
into with a bank or trust company meeting the qualifications described in clause
(ii) above;
21
(iv) commercial paper, maturing not more than one year after the
date of acquisition thereof, with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to Moody's or "A-1"
(or higher) according to S&P;
(v) securities with maturities of one year or less from the date
of acquisition issued or fully and unconditionally guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "A" by S&P or
Moody's;
(vi) any security, maturing not more than 180 days after the date
of acquisition, backed by a letter of credit issued by a bank meeting the
qualifications described in (ii) above; and
(vii) any mutual fund that has at least 95% of its assets
continuously invested in investments of the types described in clauses (i)
through (vi) and has the highest rating obtainable from either Moody's or S&P.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S. Code (S)(S) 77aaa-77bbbb), as in effect on the date this Indenture was
executed, except as provided in Section 9.06.
"Trade Payables" means, with respect to any Person, any accounts payable
or any other Indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made and with respect to any other
transaction, the date of such transaction.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of 1978,
as amended and as codified in Title 11 of the United States Code, as amended
from time to time hereafter, or any successor federal bankruptcy law.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below; and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Restricted
Subsidiary (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the Company or
any Restricted Subsidiary; provided that (a) any Guarantee by the Company or any
Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated
shall be deemed an "Incurrence" of such Indebtedness and an "Investment" by the
Company or such Restricted Subsidiary (or both, if applicable) at the time of
such designation; (b) either (x) the Subsidiary to be so designated has total
assets of $1,000 or less or (y) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 4.04 and (c) if
applicable, the Incurrence of Indebtedness and the Investment referred to in
clause (a) of this proviso would be permitted under Section 4.03 and Section
4.04. The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that (i) no Default or Event of Default shall
22
have occurred and be continuing at the time of or after giving effect to such
designation and (ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately after such designation would, if Incurred at such time,
have been permitted to be Incurred (and shall be deemed to have been Incurred)
for all purposes of this Indenture. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding provisions.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Notes, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other than
any director's qualifying shares, shares owned by professional engineers in
connection with licensing requirements or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
SECTION 1.02 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings used in this Indenture:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
23
SECTION 1.03 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(vii) all ratios and computations based on GAAP contained in
this Indenture shall be computed in accordance with the definition of GAAP set
forth in Section 1.01; and
(viii) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE NOTES
SECTION 2.01 FORM AND DATING. Provisions relating to the Initial Notes,
the Private Exchange Notes and the Exchange Notes are set forth in the Rule
144A/Regulation S Appendix attached hereto (the "Appendix") which is hereby
incorporated in and expressly made part of this Indenture. The Initial Notes and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit 1 to the Appendix which is hereby incorporated in and expressly made
a part of this Indenture. The Exchange Notes, the Private Exchange Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Company or any Subsidiary
Guarantor is subject, if any, or usage (provided that any such notation, legend
or endorsement is in a form acceptable to the Company). Each Note shall be dated
the date of its authentication. The terms of the Notes set forth in the Appendix
and Exhibit A are part of the terms of this Indenture.
SECTION 2.02 EXECUTION AND AUTHENTICATION. Two Officers shall sign the
Notes for the Company by manual or facsimile signature. If an Officer whose
signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
On the Closing Date, the Trustee shall authenticate and deliver up to
$200 million of 11 1/2% Senior Notes due 2009 and, at any time and from time to
time thereafter, the Trustee shall upon receipt of a Company
24
Order authenticate and deliver Notes for original issue in an aggregate
principal amount specified in such Company Order. Such Company Order shall
specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and, in the case of an issuance
of Additional Notes pursuant to Section 2.13 after the Closing Date, shall
certify that such issuance is in compliance with Section 4.03.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands. The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 in principal amount and any integral multiple
thereof.
SECTION 2.03 REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Notes may be presented for registration of transfer or
for exchange (the "Registrar") and an office or agency where Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Notes (the "Security Register") and of their transfer and exchange. The
Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any Wholly Owned Subsidiary incorporated or organized within The
United States of America may act as Paying Agent, Registrar, co-registrar or
transfer agent.
The Company initially appoints the Trustee as Registrar and Paying Agent
in connection with the Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST. Prior to 11:00 a.m.,
New York time, on each due date of the principal and interest on any Note, the
Company shall deposit with the Paying Agent a sum sufficient to pay such
principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying Agent
shall hold in trust for the benefit of Noteholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest on the
Securities and shall notify the Trustee of any default by the Company in making
any such payment. If the Company or a Wholly Owned Subsidiary acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it in a
separate trust fund for the benefit of the Holders. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.05 NOTEHOLDER LISTS. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Noteholders. If the Trustee is not the Registrar, the
Company shall furnish, or shall use its commercially reasonable efforts to cause
the Registrar to furnish, to the Trustee, in writing at least five Business Days
before each Interest Payment Date
25
and at such other times as the Trustee may reasonably request in writing, a list
in such form and as of such date as the Trustee may reasonably require of the
names and addresses of Noteholders.
SECTION 2.06 TRANSFER AND EXCHANGE. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note
being transferred for registration of transfer. When a Note is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if the requirements of this Indenture
and Section 8-401(a) of the Uniform Commercial Code are met. When Notes are
presented to the Registrar or a co-registrar with a request to exchange them for
an equal principal amount of Notes of other denominations, the Registrar shall
make the exchange as requested if the same requirements are met. No service
charge shall be made for any registration of transfer or exchange or redemption
of the Notes, 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 taxes or other similar governmental charge payable
upon exchange pursuant to Section 2.09, 3.08 or 9.04).
SECTION 2.07 REPLACEMENT NOTES. If a mutilated Note is surrendered to
the Registrar or if a Holder claims that a Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the Uniform Commercial
Code are met and the Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent, the Registrar and any
co-Registrar from any loss which any of them may suffer if such Note is
replaced. The Company and the Trustee may charge the Holder for their expenses
in replacing a Note. In case any such mutilated, lost, destroyed or wrongfully
taken Note has become due and payable or is to become due and payable within 15
Business Days, the Company may in its discretion pay such Note instead of
issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company.
SECTION 2.08 OUTSTANDING NOTES. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. A Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Noteholders on that date
pursuant to the terms of this Indenture, then on and after that date such Notes
(or portions thereof) cease to be outstanding and interest on them ceases to
accrue. A Note does not cease to be outstanding because the Company or one of
its Affiliates holds such Note, provided, however, that in determining whether
the Holders of the requisite principal amount of the outstanding Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee has actual
knowledge to be so owned shall be so disregarded.
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SECTION 2.09 TEMPORARY NOTES. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes and deliver them in exchange for temporary
Notes.
SECTION 2.10 CANCELLATION. The Company at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel and destroy
(subject to the record retention requirements of the Exchange Act) all Notes
surrendered for registration of transfer, exchange, payment or cancellation and
deliver a certificate of such destruction to the Company unless the Company
directs the Trustee to deliver canceled Securities to the Company. The Company
may not issue new Notes to replace Notes it has redeemed, paid or delivered to
the Trustee for cancellation.
SECTION 2.11 OVERDUE INTEREST. If the Company defaults in a payment of
interest on the Notes (the "overdue interest"), the Company shall pay the
overdue interest (plus interest at the rate per annum specified in the Notes on
such overdue interest to the extent lawful) in any lawful manner. The Company
may pay the overdue interest to the persons who are Noteholders on a subsequent
special record date. The Company shall fix or cause to be fixed any such special
record date and payment date to the reasonable satisfaction of the Trustee and
shall promptly mail to each Noteholder a notice that states the special record
date, the payment date and the amount of overdue interest to be paid.
SECTION 2.12 CUSIP NUMBERS. The Company in issuing the Notes may use
"CUSIP" numbers and corresponding "ISINs"(if then generally in use) and, if so,
the Trustee shall use "CUSIP" numbers and corresponding ISINs in notices of
redemption as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
SECTION 2.13 ISSUANCE OF ADDITIONAL NOTES. The Company shall be
entitled, subject to its compliance with Section 4.03, to issue additional Notes
("Additional Notes") under this Indenture which shall have identical terms as
the Initial Notes issued on the Closing Date, other than with respect to the
date of issuance and, if appropriate, the issue price. The Initial Notes issued
on the Closing Date, any Additional Notes and all Exchange Notes or Private
Exchange Notes issued in exchange therefor shall be treated as a single class
for all purposes under this Indenture.
With respect to any Additional Notes, the Company shall set forth in a
resolution of the Board of Directors and an Officers' Certificate, a copy of
each of which shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number and
corresponding ISIN of such Additional Notes; provided, however, that no
Additional Notes may be issued unless such Additional Notes are fungible in all
respects for U.S. Federal income tax purposes with the Notes then outstanding;
and
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(3) whether such Additional Notes shall be Transfer Restricted
Securities and issued in the form of Initial Notes as set forth in the Appendix
to this Indenture or shall be issued in the form of Exchange Notes as set forth
in Exhibit A.
ARTICLE THREE
REDEMPTION
SECTION 3.01 RIGHT OF REDEMPTION. (a) The Notes are redeemable, at the
Company's option, in whole or in part, at any time or from time to time, on or
after September 15, 2006 and prior to maturity, upon not less than 30 nor more
than 60 days' prior notice mailed by first-class mail to each Holder's last
address, as it appears in the Security Register, at the following Redemption
Prices (expressed in percentages of principal amount), plus accrued and unpaid
interest to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date that is prior to the Redemption Date to receive
interest due on an Interest Payment Date), if redeemed during the 12-month
period commencing September 15 of the years set forth below:
YEAR REDEMPTION PRICE
- ---- ----------------
2006...................105.750%
2007...................102.875%
2008...................100.000%
(b) In addition, at any time on or prior to September 15, 2005, the
Company may redeem up to 35% of the aggregate principal amount of the Notes with
the Net Cash Proceeds of one or more sales of Capital Stock (other than
Disqualified Stock), at any time as a whole or from time to time in part, at a
Redemption Price (expressed as a percentage of principal amount) of 111.50%,
plus accrued and unpaid interest to the Redemption Date (subject to the rights
of Holders of record on the relevant Regular Record Date that is prior to the
Redemption Date to receive interest due on an Interest Payment Date); provided
that (i) at least 65% of the aggregate principal amount of Notes originally
issued on the Closing Date remains outstanding after each such redemption and
(ii) notice of such redemption is mailed within 60 days after such sale
of Capital Stock.
SECTION 3.02 NOTICES TO TRUSTEE. If the Company elects to redeem Notes
pursuant to Section 3.01, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed and the clause
of this Indenture pursuant to which redemption shall occur. The Company shall
give each notice provided for in this Section 3.02 in an Officers' Certificate
at least 45 days before the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee).
SECTION 3.03 SELECTION OF NOTES TO BE REDEEMED. If less than all of the
Notes are to be redeemed at any time, the Trustee shall select the Notes to be
redeemed in compliance with the requirements, as certified to it by the Company,
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange or
automated quotation system, by lot or by such other method as the Trustee in its
sole discretion shall deem fair and appropriate; provided that no Note of $1,000
in principal amount or less shall be redeemed in part.
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The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption. Notes in denominations of $1,000 in principal
amount may only be redeemed in whole. The Trustee may select for redemption
portions (equal to $1,000 in principal amount or any integral multiple thereof)
of Notes that have denominations larger than $1,000 in principal amount.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. The Trustee shall notify the
Company and the Registrar promptly in writing of the Notes or portions of Notes
to be called for redemption.
SECTION 3.04 NOTICE OF REDEMPTION. With respect to any redemption of
Notes pursuant to Section 3.01, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail to each Holder whose Notes are to be redeemed. The notice shall
identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the Paying
Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders is to receive
payment of the Redemption Price plus accrued interest to the Redemption Date
upon surrender of the Notes to the Paying Agent;
(vi) that, if any Note is being redeemed in part, the portion of the
principal amount (equal to $1,000 in principal amount or any integral multiple
thereof) of such Note to be redeemed and that, on and after the Redemption Date,
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion thereof will be reissued; and
(vii) that, if any Note contains a CUSIP or ISIN number as provided in
Section 2.12, no representation is being made as to the correctness of the
CUSIP, or ISIN number either as printed on the Notes or as contained in the
notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Notes. At the Company's request (which
request may be revoked by the Company at any time prior to the time at which the
Trustee shall have given such notice to the Holders), made in writing to the
Trustee at least 45 days (or such shorter period as shall be satisfactory to the
Trustee) before a Redemption Date, the Trustee shall give the notice of
redemption in the name and at the expense of the Company. If, however, the
Company gives such notice to the Holders, the Company shall concurrently deliver
to the Trustee an Officers' Certificate stating that such notice has been given.
SECTION 3.05 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender of any Notes to the Paying
Agent, such Notes shall be paid at the Redemption Price, plus accrued interest,
if any, to the Redemption Date.
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Notice of redemption shall be deemed to be given when mailed, whether or
not the Holder receives the notice. In any event, failure to give such notice,
or any defect therein, shall not affect the validity of the proceedings for the
redemption of Notes held by Holders to whom such notice was properly given.
SECTION 3.06 DEPOSIT OF REDEMPTION PRICE. On or prior to any Redemption
Date, the Company shall deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, shall segregate and hold in trust as provided in
Section 2.04) money sufficient to pay the Redemption Price of and accrued
interest on all Notes to be redeemed on that date other than Notes or portions
thereof called for redemption on that date that have been delivered by the
Company to the Trustee for cancellation.
SECTION 3.07 PAYMENT OF NOTES CALLED FOR REDEMPTION. If notice of
redemption has been given in the manner provided above, the Notes or portion of
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued interest to such Redemption Date, and on and after such date (unless the
Company shall default in the payment of such Notes at the Redemption Price and
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders registered as such at the close of business on the relevant Regular
Record Date and not to the Holders on the Redemption Date, if different.
SECTION 3.08 NOTES REDEEMED IN PART. Upon surrender of any Note that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder without service charge, a new Note equal in principal
amount to the unredeemed portion of such surrendered Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01 PAYMENT OF NOTES. The Company shall pay the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes and this Indenture. An installment of principal, premium,
if any, or interest shall be considered paid on the date due if the Trustee or
Paying Agent (other than the Company, a Subsidiary of the Company, or any
Affiliate of any of them) holds on that date money designated for and sufficient
to pay the installment. If the Company or any Subsidiary of the Company or any
Affiliate of any of them acts as Paying Agent, an installment of principal,
premium, if any, or interest shall be considered paid on the due date if the
entity acting as Paying Agent complies with the third sentence of Section 2.04.
As provided in Section 6.09, upon any bankruptcy or reorganization procedure
relative to the Company, the Trustee shall serve as the Paying Agent, if any,
for the Notes.
The Company shall pay interest on overdue principal and premium, if any,
and interest on overdue installments of interest, to the extent lawful, at the
rate per annum specified in the Notes.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY. The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Notes may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the
30
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company in accordance with Section 2.03.
SECTION 4.03 LIMITATION ON INCURRENCE OF INDEBTEDNESS. (a) The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (other than the Notes (other than Additional Notes), the Note
Guarantees and other Indebtedness existing on the Closing Date, including the
Assumed EG&G Debt); provided that the Company or any Subsidiary Guarantor may
Incur Indebtedness, and any Restricted Subsidiary may Incur Acquired
Indebtedness, in each case if, after giving effect to the Incurrence of such
Indebtedness and the receipt and application of the proceeds therefrom, (1) the
Fixed Charge Coverage Ratio would be greater than 2:1 and (2) if such
Indebtedness to be Incurred is Senior Indebtedness, the Consolidated Senior Debt
Ratio would be less than 3.5:1 if such Indebtedness is Incurred on or prior to
August 15, 2004 and 3.25:1 if such Indebtedness is Incurred thereafter.
Notwithstanding the preceding, the Company and any Restricted Subsidiary
(except as specified below) may Incur each and all of the following:
(i) Indebtedness of the Company or any Subsidiary Guarantor outstanding
at any time pursuant to this clause (i) under the Credit Agreement in an
aggregate principal amount (together with refinancings thereof incurred under
clause (iii) of this paragraph) not to exceed $675 million, less any amount of
such Indebtedness permanently repaid as provided under Section 4.10;
(ii) Indebtedness owed (A) to the Company; provided that if such
Indebtedness of any one Person exceeds $500,000 it shall be evidenced by a
promissory note or (B) to any Restricted Subsidiary; provided that (x) any event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Indebtedness (other than to the
Company or another Restricted Subsidiary) shall be deemed, in each case, to
constitute an Incurrence of such Indebtedness not permitted by this clause (ii)
and (y) if the Company or any Subsidiary Guarantor is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated in right of
payment to the Notes, in the case of the Company, or the Note Guarantee, in the
case of a Subsidiary Guarantor;
(iii) Indebtedness issued in exchange for, or the net proceeds of which
are used to refinance or refund, then outstanding Indebtedness and any
refinancings thereof in an amount not to exceed the amount so refinanced or
refunded (plus premiums, accrued interest, fees and expenses); provided that (a)
Indebtedness the proceeds of which are used to refinance or refund the Notes or
Indebtedness that is pari passu with, or subordinated in right of payment to,
the Notes or the Note Guarantees shall only be permitted under this
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clause (iii) if (x) in case the Notes are refinanced in part or the Indebtedness
to be refinanced is pari passu with the Notes or any Note Guarantees, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is outstanding, is expressly made pari
passu with, or subordinate in right of payment to, the remaining Notes or such
Note Guarantees, or (y) in case the Indebtedness to be refinanced is
subordinated in right of payment to the Notes or any Note Guarantees, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is issued or remains outstanding, is
expressly made subordinate in right of payment to the Notes or such Note
Guarantees at least to the extent that the Indebtedness to be refinanced is
subordinated to the Notes or such Note Guarantees, (b) such new Indebtedness,
determined as of the date of Incurrence of such new Indebtedness, does not
mature prior to the Stated Maturity of the Indebtedness to be refinanced or
refunded or the Stated Maturity of the Notes, if sooner, and the Average Life of
such new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded, and (c) such new Indebtedness is
Incurred by the Company or by the Restricted Subsidiary who is the obligor on
the Indebtedness to be refinanced or refunded;
(iv) Indebtedness of the Company, to the extent the net proceeds thereof
are promptly (a) used to purchase Notes tendered in an Offer to Purchase made as
a result of a Change of Control or (b) deposited to defease the Notes as
described under Section 8.02 or 8.03 or to discharge the Notes as described
under Section 8.01;
(v) Guarantees of the Notes and Guarantees of Indebtedness of the
Company or any Restricted Subsidiary that is not a Foreign Subsidiary by any
Restricted Subsidiary; provided that the Guarantee of such Indebtedness is not
prohibited by and is made in accordance with Section 4.06;
(vi) Indebtedness of Foreign Subsidiaries in an aggregate principal
amount outstanding at any time pursuant to this clause (vi) (together with
refinancings thereof Incurred under clause (iii) of this paragraph) not to
exceed the greater of (x) $40 million and (y) 70% of the consolidated book value
of the accounts receivable of all the Foreign Subsidiaries;
(vii) Guarantees of Indebtedness of any Foreign Subsidiary incurred
under clause (vi) above, by the Company or any Subsidiary Guarantor; provided
that the aggregate amount of Indebtedness guaranteed pursuant to this clause
(vii) at any one time does not exceed $40 million;
(viii) Purchase Money Indebtedness of the Company or any Subsidiary
Guarantor; provided that the aggregate amount of such Indebtedness outstanding
at any time pursuant to this clause (viii) (together with refinancings thereof
Incurred under clause (iii) of this paragraph) shall not exceed $25 million; and
provided further that, if the Indebtedness being Incurred is Senior
Indebtedness, after giving effect to the Incurrence thereof and the application
of the proceeds therefrom, the Company or such Subsidiary Guarantor could Incur
at least $1.00 of Senior Indebtedness under clause (2) of the proviso to the
first paragraph of this Section 4.03(a);
(ix) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount outstanding (in addition to Indebtedness permitted
under clauses (i) through (viii) above and clause (x) below) pursuant to this
clause (ix) (together with refinancings thereof Incurred under clause (iii) of
this paragraph) not to exceed $10 million; provided that, if the Indebtedness
being Incurred is Senior Indebtedness, after giving effect to the Incurrence
thereof and the application of the proceeds therefrom, the Company or such
Restricted Subsidiary could Incur at least $1.00 of Senior Indebtedness under
clause (2) of the proviso to the first paragraph of this Section 4.03(a); and
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(x) Indebtedness of the Company or any Subsidiary Guarantor (in addition
to Indebtedness permitted under clauses (i) through (ix) above) outstanding at
any time pursuant to this clause (x) (together with refinancings thereof
Incurred under clause (iii) of this paragraph) in an aggregate principal amount
not to exceed $20 million; provided that, if the Indebtedness being Incurred is
Senior Indebtedness, after giving effect to the Incurrence thereof and the
application of the proceeds therefrom, the Company or such Subsidiary Guarantor
could Incur at least $1.00 of Senior Indebtedness under clause (2) of the
proviso to the first paragraph of this Section 4.03(a).
(b) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
Incur or that is deemed to be outstanding pursuant to this Section 4.03 shall
not be affected by fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness
under this Section 4.03, (x) Indebtedness Incurred under the Credit Agreement on
or prior to the Closing Date shall be treated as Incurred pursuant to clause (i)
of the second paragraph of clause (a) of this Section 4.03, (y) Guarantees,
Liens or obligations with respect to letters of credit supporting Indebtedness
otherwise included in the determination of such particular amount shall not be
included and (z) any Liens granted pursuant to the equal and ratable provisions
referred to in Section 4.08 shall not be treated as Indebtedness. For purposes
of determining compliance with this Section 4.03, in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described above (other than Indebtedness referred to in clause (x) of the
preceding sentence), the Company, in its sole discretion, shall classify, and
from time to time may reclassify, such item of Indebtedness and shall only be
required to include the amount and type of such Indebtedness in one of such
clauses.
SECTION 4.04 LIMITATION ON RESTRICTED PAYMENTS. The Company shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution on or with
respect to its Capital Stock held by persons other than the Company or any of
its Restricted Subsidiaries other than:
(x) dividends or distributions payable in shares of its Capital Stock
(other than Disqualified Stock) or in options, warrants or other rights to
acquire shares of such Capital Stock and
(y) pro rata dividends or distributions on Common Stock of Restricted
Subsidiaries,
(ii) purchase, redeem, retire or otherwise acquire for value any shares
of Capital Stock of the Company or any Subsidiary Guarantor (including options,
warrants or other rights to acquire such shares of Capital Stock) held by any
Person other than the Company or a Subsidiary Guarantor,
(iii) make any voluntary or optional principal payment, or voluntary or
optional redemption, repurchase, defeasance, or other voluntary or optional
acquisition or retirement for value, of Indebtedness of the Company that is
subordinated in right of payment to the Notes or any Indebtedness of a
Subsidiary Guarantor that is subordinated in right of payment to the Note
Guarantees or
(iv) make any Investment, other than a Permitted Investment, in any
Person (all such payments and any other actions described in clauses (i) through
(iv) above being collectively "Restricted Payments"),
if, at the time of, and after giving effect to, the proposed Restricted Payment:
33
(A) a Default or Event of Default shall have occurred and be continuing,
(B) the Fixed Charge Coverage Ratio would be equal to or less than 2:1
or
(C) the aggregate amount of such Restricted Payments, together with all
other Restricted Payments made subsequent to the Closing Date, shall exceed the
sum of
(1) 50% of the excess over $50 million of the aggregate amount of the
Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is
a loss, minus 100% of the amount of such loss) accrued on a cumulative basis
during the period (taken as one accounting period) beginning on the first day of
the fiscal quarter during which the Closing Date occurs and ending on the last
day of the last fiscal quarter preceding the Transaction Date for which reports
have been filed with the Commission or provided to the Trustee plus
(2) the aggregate Net Cash Proceeds received by the Company subsequent
to the Closing Date from
(a) the issuance and sale of (or cash capital contribution in respect
of) its Capital Stock (other than Disqualified Stock) to (or, in the case of a
capital contribution, from) a Person who is not a Subsidiary of the Company,
(b) an issuance or sale to a Person who is not a Subsidiary of the
Company not prohibited by this Indenture of Indebtedness of the Company or a
Subsidiary of the Company for cash subsequent to the Closing Date upon the
conversion or exchange of such Indebtedness into Capital Stock (other than
Disqualified Stock) of the Company,
(c) any exercise for, or exchange or conversion of, securities
(including options, warrants, rights and convertible or exchangeable
Indebtedness) of the Company or a Subsidiary of the Company into Capital Stock
(other than Disqualified Stock) of the Company, and
(d) the issuance or sale to a Person who is not a Subsidiary of the
Company of any options, warrants or other rights to acquire Capital Stock of the
Company (in each case, exclusive of any Disqualified Stock or any options,
warrants or other rights that are redeemable at the option of the holder, or are
required to be redeemed, prior to the Stated Maturity of the Notes) plus
(3) an amount equal to the net reduction in Investments (other than
reductions in Permitted Investments) in any Person resulting from distributions
on or repayments of any Investments, including payments of interest on
Indebtedness, dividends, repayments of loans or advances (including the release
of any Guarantee that was treated as a Restricted Payment at the time Incurred),
or other distributions or transfers of assets, in each case to the Company or
any Restricted Subsidiary, or from the Net Cash Proceeds from the sale or other
disposition of any such Investment (except, in each case, in order to avoid
duplication to the extent any such payment or proceeds have been or would be
included in the calculation of Adjusted Consolidated Net Income for purposes of
clause (C)(1) of this Section 4.04), or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the
definition of "Investments"), not to exceed, in each case, the amount of
Investments previously made by the Company or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary plus
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(4) $5 million.
The amount of all Restricted Payments, if other than in cash, shall be
the fair market value thereof determined in good faith by the Board of Directors
or a Senior Officer of the Company, whose determination shall be conclusive;
provided that if the non-cash amount of any single Restricted Payment or series
of related Restricted Payments exceeds $25 million, such amount shall be
determined in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution.
The preceding provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of its
declaration if, on the date of declaration, such payment would comply with the
foregoing paragraph;
(ii) the making of any principal payment or the redemption, repurchase,
defeasance or other acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes or any Note Guarantee, including
principal, premium, if any, and accrued and unpaid interest, with the proceeds
of, or in exchange for, Indebtedness Incurred under clause (iii) of the second
paragraph of part (a) of Section 4.03;
(iii) the repurchase, redemption, retirement or other acquisition of
Capital Stock of the Company, a Subsidiary Guarantor or an Unrestricted
Subsidiary (or options, warrants or other rights to acquire such Capital Stock)
in exchange for, or out of the proceeds of a substantially concurrent offering
of, shares of Capital Stock (other than Disqualified Stock) of the Company (or
options, warrants or other rights to acquire such Capital Stock; provided that
such options, warrants or other rights are not redeemable (other than for shares
of Capital Stock, other than Disqualified Stock) prior to the Stated Maturity of
the Notes);
(iv) the making of any principal payment or the repurchase, redemption,
retirement, defeasance or other acquisition for value of Indebtedness that is
subordinated in right of payment to the Notes or any Note Guarantee, including
principal, premium, if any, and accrued and unpaid interest, in exchange for, or
out of the proceeds of, a substantially concurrent offering of, shares of the
Capital Stock (other than Disqualified Stock) of the Company (or options,
warrants or other rights to acquire such Capital Stock; provided that such
options, warrants or other rights are not redeemable (other than for shares of
Capital Stock, other than Disqualified Stock) prior to the Stated Maturity of
the Notes);
(v) payments or distributions to dissenting stockholders pursuant to
applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets that complies with the provisions of this Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Company; provided that no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence of
such payment or distribution;
(vi) Investments acquired in exchange for, or out of the proceeds of a
substantially concurrent offering of, Capital Stock (other than Disqualified
Stock) of the Company (or options, warrants or other rights to acquire such
Capital Stock; provided that such options, warrants or other rights are not
redeemable (other than for shares of Capital Stock, other than Disqualified
Stock) prior to the Stated Maturity of the Notes);
(vii) the declaration or payment of dividends on Capital Stock (other
than Disqualified Stock) of the Company in an aggregate annual amount not to
exceed 6% of the Net Cash Proceeds received by the Company after the Closing
Date from the sale of such Capital Stock (or options, warrants or other rights
to acquire such
35
Capital Stock); provided that no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence of such action or payment;
(viii) any purchase of fractional shares of Common Stock of the Company
in connection with the conversion of securities of the Company convertible into
Common Stock;
(ix) loans or advances to employees and consultants of the Company or
its Restricted Subsidiaries in the ordinary course of business to purchase
Capital Stock (other than Disqualified Stock) of the Company in an aggregate
amount outstanding at any time under this clause (ix) not to exceed $10 million;
(x) Investments in any Person the primary business of which is
reasonably related, ancillary or complementary to the business of the Company
and its Restricted Subsidiaries on the date of such Investment; provided that
the aggregate amount of such Investments under this clause (x) does not exceed
$20 million plus the net reduction in Investments made pursuant to this clause
(x) resulting from distributions on or repayments of such Investments, including
payments of interest on Indebtedness, dividends, repayments of loans or
advances, or other distributions or other transfers of assets, in each case to
the Company or any Restricted Subsidiary, or from the Net Cash Proceeds from the
sale or other disposition of any such Investment (except, in each case, in order
to avoid duplication to the extent any such payments or proceeds have been or
would be included in the calculation of Adjusted Consolidated Net Income for
purposes of clause (C)(1) of this Section 4.04) or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as
provided in the definition of "Investments"); provided that the net reduction in
any Investments from any Person shall not exceed the amount of such Investments
in such Person; provided further that no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence of such Investment;
(xi) repurchases of Capital Stock of the Company or a Subsidiary of the
Company or options, warrants or other rights to acquire Capital Stock of the
Company or a Subsidiary of the Company repurchased from directors and employees
(or their heirs or estates) of the Company or its Subsidiaries upon the death,
disability or termination of employment or in connection with repurchases from
employees pursuant to the terms of any stock option, restricted stock or stock
incentive plan in an aggregate amount under this clause (xi) to all employees
(or their heirs or estates) that shall not during any one fiscal year exceed the
sum of:
(a) $2.5 million plus
(b) the aggregate amount of repurchases that would have been permitted
to be made during each preceding fiscal year pursuant to this clause (xi) and
were not so made; provided that no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence of such repurchase;
(xii) purchases of shares of Capital Stock of any Subsidiary Guarantor
owned by professional engineers in connection with licensing requirements in an
aggregate amount not to exceed $500,000;
(xiii) repurchases of shares of Capital Stock of the Company that
constitute odd lots, pursuant to a program established by the Company for the
repurchase of odd lots, in an aggregate amount during any fiscal year not to
exceed the sum of $100,000 plus the aggregate amount of repurchases that would
have been permitted to be made under this clause (xiii) during each preceding
fiscal year and were not so made;
(xiv) dividends on Preferred Stock of Restricted Subsidiaries permitted
to be issued pursuant to Section 4.03; or
36
(xv) other Restricted Payments in an aggregate amount not to exceed $20
million, measured by the fair market value thereof at the time made; provided
that no Default or Event of Default shall have occurred and be continuing or
would occur as a consequence of such Restricted Payment.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof, an
exchange of Capital Stock for Capital Stock or Indebtedness referred to in
clause (iii) or (iv) thereof, an Investment acquired in exchange for Capital
Stock referred to in clause (vi) thereof, any loan or advance referred to in
clause (ix) thereof, repurchases of Capital Stock referred to in clause (xi) or
clause (xii) thereof, dividends on Preferred Stock of Restricted Subsidiaries
referred to in clause (xiv) thereof or Restricted Payments referred to in clause
(xv) thereof), and the Net Cash Proceeds from any issuance of Capital Stock (or
options, warrants or other rights to acquire Capital Stock) referred to in
clauses (iii), (iv) and (vi) thereof, shall be included in calculating whether
the conditions of clause (C) of the first paragraph of this Section 4.04 have
been met with respect to any subsequent Restricted Payments. For purposes of
determining compliance with this Section 4.04, in the event that a Restricted
Payment meets the criteria of more than one of the types of Restricted Payments
described in the above clauses, the Company, in its sole discretion, may order
and classify, and from time to time may reclassify, such Restricted Payment if
it would have been permitted at the time such Restricted Payment was made and at
the time of such reclassification.
SECTION 4.05 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES. The Company shall not, and shall not permit
any Restricted Subsidiary to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the
Company or any other Restricted Subsidiary;
(ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary;
(iii) make loans or advances to the Company or any other Restricted
Subsidiary; or
(iv) transfer any of its property or assets to the Company or any other
Restricted Subsidiary.
The preceding provisions shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date in the Credit Agreement, this Indenture
or any other agreements or Indebtedness in effect on the Closing Date, and any
extensions, refinancings, renewals or replacements of such agreements or
Indebtedness; provided that the encumbrances and restrictions in any such
extensions, refinancings, renewals or replacements are no less favorable in any
material respect to the Holders than those encumbrances or restrictions that are
then in effect and that are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) contained in any agreements binding upon or relating to any
property, asset, business or any Person or the property, assets or businesses of
such Person, in each case acquired by the Company or any Restricted Subsidiary
and existing at the time of such acquisition and not incurred in contemplation
of such acquisition; provided that such encumbrances or restrictions are not
applicable to any property, asset, business or any Person
37
or the property, assets or businesses of such Person, other than the property,
asset, business or Person or the property, assets or businesses of such Person
so acquired;
(iv) in the case of clause (iv) of the first paragraph of this Section
4.05, (A) that restrict in a customary manner the subletting, assignment or
transfer of any property or asset that is a lease, license, conveyance or
contract or similar property or asset, including, without limitation, customary
non-assignment provisions in leases, purchase money obligations and other
similar agreements, in each case with respect to the property or assets subject
thereto, (B) existing by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by this Indenture,
(C) arising or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary in
any manner material to the Company or any Restricted Subsidiary or (D)
restrictions on cash or deposits required by insurance, surety or bonding
companies under contracts entered in the ordinary course of business;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock of, or property and assets of, such
Restricted Subsidiary;
(vi) contained in the terms of any Indebtedness of the Company or any
Subsidiary Guarantor; provided that such encumbrances or restrictions taken as a
whole are no more restrictive in the aggregate than those contained in this
Indenture, as determined in good faith by the Board of Directors or a Senior
Officer of the Company, whose determination shall be conclusive;
(vii) contained in any agreement or instrument governing Senior
Indebtedness not incurred in violation of Section 4.03; provided that such
encumbrances or restrictions taken as a whole are no more restrictive in the
aggregate than those contained in the Credit Agreement, as determined in good
faith by the Board of Directors or a Senior Officer of the Company, whose
determination shall be conclusive;
(viii) on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(ix) with respect to any Restricted Subsidiary, contained in the terms
of any Indebtedness or Preferred Stock or any agreement pursuant to which such
Indebtedness or Preferred Stock was issued if:
(A) the encumbrance or restriction applies only in the event of a
payment default or a default with respect to a financial covenant contained in
such Indebtedness or agreement;
(B) the encumbrance or restriction is not materially more
disadvantageous to the Holders of the Notes than is customary in comparable
financings (as determined by the Company); and
(C) the Company determines that any such encumbrance or restriction will
not materially affect the Company's ability to make principal or interest
payments on the Notes, as determined in good faith by the Board of Directors or
a Senior Officer of the Company, whose determination shall be conclusive;
(x) with respect to any property or assets acquired with Purchase Money
Indebtedness and imposed by such Purchase Money Indebtedness;
38
(xi) imposed by customary provisions in joint venture agreements and
similar agreements that restrict the transfer of the interest in the joint
venture;
(xii) contained in any mortgage or construction financing agreement
which impose restrictions on the transfer of the property acquired or improved;
(xiii) contained in any extensions, refinancings, renewals or
replacements of any of the agreements or instruments referred to in the
preceding clauses of this paragraph, provided that the encumbrances and
restrictions in any such extensions, refinancings, renewals or replacements
taken as a whole are not materially less favorable to the Holders than those
encumbrances or restrictions that are then in effect and that are being
extended, refinanced, renewed or replaced, as determined in good faith by the
Board of Directors or a Senior Officer of the Company, whose determination shall
be conclusive; or
(xiv) with respect to any Foreign Subsidiary, contained in the terms of
any Indebtedness or Preferred Stock or any agreement pursuant to which such
Indebtedness or Preferred Stock was issued if:
(A) either (i) the encumbrance or restriction applies only in the event
of a payment default or a default with respect to a financial covenant in such
Indebtedness or agreement or (ii) the Company determines that any such
encumbrance or restriction will not materially affect the Company's ability to
make principal or interest payments on the Notes, as determined in good faith by
the Board of Directors or a Senior Officer of the Company, whose determination
shall be conclusive and
(B) the encumbrance or restriction is not materially more
disadvantageous to the Holders of the Notes than is customary in comparable
financings (as determined by the Company).
Nothing contained in this Section 4.05 shall prevent the Company or any
Restricted Subsidiary from (i) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted by Sections 4.08 and 4.09 or (ii)
restricting the sale or other disposition of property or assets of the Company
or any of its Restricted Subsidiaries that secure Indebtedness of the Company or
any of its Restricted Subsidiaries.
SECTION 4.06 LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED
SUBSIDIARIES. The Company shall not permit any Restricted Subsidiary that is not
a Subsidiary Guarantor, directly or indirectly, to Guarantee any Indebtedness of
the Company or any other Restricted Subsidiary (other than a Foreign
Subsidiary), unless (i) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture, in a form reasonably
satisfactory to the Trustee, providing for a Guarantee (a "Subsidiary
Guarantee") of payment of the Notes by such Restricted Subsidiary on the same
terms as the Guarantee provided by the other Subsidiary Guarantors pursuant to
this Indenture and (ii) such Restricted Subsidiary waives and shall not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee.
Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted
Subsidiary shall be automatically and unconditionally released and discharged
upon (x) any sale, exchange or transfer, to any Person (other than the Company
or another Restricted Subsidiary), of all of the Company's and each Restricted
Subsidiary's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not prohibited by
this Indenture), (y) upon the designation of such Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with this Indenture or (z) the release or
discharge of the Guarantee which resulted in the creation of such Subsidiary
Guarantee.
39
SECTION 4.07 LIMITATION ON TRANSACTIONS WITH SHAREHOLDERS AND
AFFILIATES. The Corporation shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any holder
of 10% or more of any class of Capital Stock of the Company or with any
Affiliate of the Company or any Restricted Subsidiary, except upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than could be obtained, at the time of such transaction or, if such transaction
is pursuant to a written agreement, at the time of the execution of the
agreement providing therefor, in a comparable arm's-length transaction with a
Person that is not such a holder or an Affiliate.
The preceding limitation does not limit, and shall not apply to:
(i) transactions (A) approved by a majority of the disinterested members
of the Board of Directors, if there are any such disinterested members or (B)
for which the Company or a Restricted Subsidiary delivers to the Trustee a
written opinion of a nationally recognized investment banking, accounting,
appraisal firm, or valuation stating that the transaction is fair to the Company
or such Restricted Subsidiary from a financial point of view;
(ii) any transaction solely between the Company and any of its
Restricted Subsidiaries or solely between Restricted Subsidiaries;
(iii) the payment of reasonable and customary regular fees to directors
of the Company who are not employees of the Company and indemnification
arrangements entered into by the Company in the ordinary course of business;
(iv) any payments or other transactions pursuant to any tax-sharing
agreement between the Company and any other Person with which the Company files
a consolidated tax return or with which the Company is part of a consolidated
group for tax purposes;
(v) any sale of shares of Capital Stock (other than Disqualified Stock)
of the Company or any options, warrants or other rights to acquire such Capital
Stock;
(vi) management and administrative services provided in the ordinary
course of business by the Company or any Restricted Subsidiary to any Restricted
Subsidiary or any Person in which the Company or any Restricted Subsidiary has
an Investment;
(vii) any employment arrangements entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business; or
(viii) any Permitted Investments and any Restricted Payments not
prohibited by Section 4.04.
Notwithstanding the preceding, any transaction or series of related
transactions covered by the first paragraph of this Section 4.07 and not covered
by clauses (ii) through (viii) of this Section 4.07, (a) the aggregate amount of
which exceeds $10 million in value, must be approved or determined to be fair in
the manner provided for in clause (i)(A) or (B) above and (b) the aggregate
amount of which exceeds $20 million in value, must be determined to be fair in
the manner provided for in clause (i)(B) above.
40
SECTION 4.08 LIMITATION ON LIENS. The Company shall not, and shall not
permit any Subsidiary Guarantor to, directly or indirectly, Incur or permit to
exist any Lien (the "Initial Lien") of any nature whatsoever on any of its
properties (including Capital Stock of a Restricted Subsidiary), whether owned
at the Closing Date or thereafter acquired, securing any Indebtedness, other
than Permitted Liens, without effectively providing that the Notes shall be
secured equally and ratably with (or prior to) the obligations so secured for so
long as such obligations are so secured.
Any Lien created for the benefit of the Holders of the Notes pursuant to
the preceding sentence shall provide by its terms that such Lien shall be
automatically and unconditionally released and discharged upon the release and
discharge of the Initial Lien.
SECTION 4.09 LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The Company
shall not, and shall not permit any Subsidiary Guarantor to, enter into any
Sale/Leaseback Transaction with respect to any property unless:
(1) the Company or such Subsidiary Guarantor would be entitled
to (A) Incur Indebtedness in an amount equal to the Attributable Debt
with respect to such Sale/Leaseback Transaction pursuant to Section 4.03
and (B) create a Lien on such property securing such Attributable Debt
without equally and ratable securing the Notes pursuant to, and after
giving effect to the Permitted Liens provisions in, Section 4.08;
(2) the net proceeds received by the Company or any Subsidiary
Guarantor in connection with such Sale/Leaseback Transaction are at
least equal to the fair value (as determined by the Board of Directors)
of such property; and
(3) the Company applies the proceeds of such transaction in
compliance with Section 4.10.
SECTION 4.10 LIMITATION ON ASSET SALES. The Company shall not, and
shall not permit any Restricted Subsidiary to, consummate any Asset Sale, unless
(i) the consideration received by the Company or such Restricted Subsidiary is
at least equal to the fair market value of the assets sold or disposed of and
(ii) at least 75% of the consideration received consists of (a) cash or
Temporary Cash Investments, (b) the assumption of Indebtedness of the Company or
any Restricted Subsidiary (other than Indebtedness to the Company or any
Restricted Subsidiary), provided that the Company or such Restricted Subsidiary
is irrevocably and unconditionally released from all liability under such
Indebtedness or (c) Replacement Assets.
For purposes of this Section 4.10, any securities, notes, mortgages or
other obligations received by the Company or any Restricted Subsidiary in any
Asset Sale that are converted, sold or exchanged by the Company or such
Restricted Subsidiary into cash within 60 days of the related Asset Sale (to the
extent of the cash received in that conversion, sale or exchange) shall be
deemed to be cash.
In the event and to the extent that the Net Cash Proceeds received by
the Company or any of its Restricted Subsidiaries from one or more Asset Sales
occurring on or after the Closing Date in any period of 12 consecutive months
exceed $10 million, then the Company shall or shall cause the relevant
Restricted Subsidiary to:
(i) within 12 months after the date Net Cash Proceeds so received exceed
$10 million,
41
(A) apply an amount equal to such excess Net Cash Proceeds to
permanently repay Senior Indebtedness of the Company or of any Subsidiary
Guarantor or Indebtedness of any other Restricted Subsidiary, in each case owing
to a Person other than the Company or any of its Restricted Subsidiaries, or
(B) invest an equal amount, or the amount not so applied pursuant to
clause (A) (or enter into a definitive agreement committing to so invest within
12 months after the date of such agreement), in Replacement Assets; and
(ii) apply (no later than the end of the 12-month period referred to in
clause (i)) an amount equal to such excess Net Cash Proceeds (to the extent not
applied or committed to be applied pursuant to clause (i)) as provided in the
following paragraphs of this Section 4.10.
The amount of such excess Net Cash Proceeds required to be applied (or
to be committed to be applied) during such 12-month period as set forth in
clause (i) of the preceding sentence and not applied as so required by the end
of such period shall constitute "Excess Proceeds." If, as of the first day of
any calendar month, the aggregate amount of Excess Proceeds not theretofore
subject to an Offer to Purchase pursuant to this Section 4.10 totals at least
$10 million, the Company must commence, not later than the fifteenth Business
Day of such month, and consummate an Offer to Purchase from the Holders (and if
required by the terms of any Indebtedness that is pari passu with the Notes
("Pari Passu Indebtedness"), from the holders of such Pari Passu Indebtedness)
on a pro rata basis an aggregate principal amount of Notes (and Pari Passu
Indebtedness) equal to the Excess Proceeds on such date, at a purchase price
equal to 100% of the principal amount thereof, plus, in each case, accrued
interest (if any) to the Payment Date. If any Exceeds Proceeds remain after
consummation of an Offer to Purchase, the Company or any Restricted Subsidiary
may use such Excess Proceeds for any purpose not otherwise prohibited by this
Indenture.
If the Company is required by the terms of any Pari Passu Indebtedness
to apply any Excess Proceeds to purchase such Pari Passu Indebtedness, then the
Company shall apply a portion of the Excess Proceeds to purchase Notes pursuant
to an Offer to Purchase and a portion of the Excess Proceeds to conduct an offer
to purchase an amount of such Pari Passu Indebtedness from the holders of such
Pari Passu Indebtedness on the same terms and conditions as the Offer to
Purchase applicable to the Notes, and such purchase shall be consummated on the
same date as the date of consummation of the Offer to Purchase applicable to the
Notes.
The principal amount of Notes that the Company shall purchase shall be
an aggregate principal amount equal to the lesser of:
(i) the aggregate outstanding principal amount of the Notes tendered
into such Offer to Purchase; and
(ii) the product of:
(a) the aggregate outstanding principal amount of the then outstanding
Notes times
(b) a fraction, (x) the numerator of which is the aggregate amount of
Excess Proceeds on such date and (y) the denominator of which is the sum of the
aggregate principal amount of outstanding Notes plus the aggregate outstanding
principal amount (or accreted value in the case of Pari Passu Indebtedness
issued with original issue discount) of such Pari Passu Indebtedness.
The purchase price that the Company shall be required to pay for Notes
purchased pursuant to the preceding paragraph shall be equal to 100% of the
principal amount thereof, plus accrued interest, if any, to the
42
Payment Date. If the aggregate principal amount of Notes tendered by Holders of
such Notes exceeds the amount of Excess Proceeds applied by the Company pursuant
to the preceding paragraph to the purchase of Notes, the Company shall purchase
tendered Notes on a pro rata basis.
On the Payment Date, the Company shall:
(i) accept for payment on a pro rata basis Notes or portions thereof
tendered pursuant to an Offer to Purchase;
(ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Notes or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee all Notes or
portions thereof so accepted together with an Officers' Certificate specifying
the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price of such Notes, and the Trustee
shall promptly authenticate and mail to such Holders a new Note equal in
principal amount to any unpurchased portion of the Note surrendered; provided
that each Note purchased and each new Note issued shall be in a principal amount
of $1,000 or integral multiples of $1,000. The Company shall publicly announce
the results of an Offer to Purchase as soon as practicable after the Payment
Date. The Trustee shall act as the Paying Agent for an Offer to Purchase.
The Company shall comply with Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that the Company is required to
repurchase Notes pursuant to an Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Indenture relating to such Offer to Purchase, the Company shall comply with
the applicable securities laws and regulations and shall be deemed to not have
breached its obligations under this Indenture with respect to such Offer to
Purchase by virtue of such compliance with applicable securities laws and
regulations.
Upon completion of any such Offer to Purchase, the amount of Excess
Proceeds shall be reset to zero.
SECTION 4.11 REPURCHASE OF NOTES UPON A CHANGE OF CONTROL. The Company
shall commence, within 30 days of the occurrence of a Change of Control, an
Offer to Purchase for all Notes then outstanding, at a purchase price equal to
101% of the principal amount thereof, plus accrued interest, if any, to the
Payment Date.
On the Payment Date, the Company shall:
(i) accept for payment on a pro rata basis Notes or portions thereof
tendered pursuant to an Offer to Purchase;
(ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Notes or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee all Notes or
portions thereof so accepted together with an Officers' Certificate specifying
the Notes or portions thereof accepted for payment by the Company.
43
The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price of such Notes, and the Trustee
shall promptly authenticate and mail to such Holders a new Note equal in
principal amount to any unpurchased portion of the Note surrendered; provided
that each Note purchased and each new Note issued shall be in a principal amount
of $1,000 or integral multiples of $1,000. The Company shall publicly announce
the results of an Offer to Purchase as soon as practicable after the Payment
Date. The Trustee shall act as the Paying Agent for an Offer to Purchase.
The Company shall comply with Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that the Company is required to
repurchase Notes pursuant to an Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Indenture relating to such Offer to Purchase, the Company shall comply with
the applicable securities laws and regulations and shall be deemed to not have
breached its obligations under this Indenture with respect to such Offer to
Purchase by virtue of such compliance with applicable securities laws and
regulations.
The Company shall not be required to make an Offer to Purchase upon the
occurrence of a Change of Control if a third party makes an offer to purchase
the Notes in the manner, at the times and price and otherwise in compliance with
the requirements of this Indenture applicable to an Offer to Purchase for a
Change of Control and purchases all Notes validly tendered and not withdrawn in
such offer to purchase.
SECTION 4.12 EXISTENCE. Subject to Articles Four and Five of this
Indenture, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each Restricted Subsidiary and the
rights (whether pursuant to charter, partnership certificate, agreement, statute
or otherwise), licenses and franchises of the Company and each Restricted
Subsidiary; provided that the Company shall not be required to preserve any such
right, license or franchise, or the existence of any Restricted Subsidiary, if
the maintenance or preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.13 PAYMENT OF TAXES. The Company shall pay or discharge and
shall cause each of its Subsidiaries to pay or discharge, or cause to be paid or
discharged, before the same shall become delinquent all material taxes,
assessments and governmental charges levied or imposed upon (a) the Company or
any such Subsidiary, (b) the income or profits of any such Subsidiary which is a
corporation or (c) the property of the Company or any such Subsidiary; provided
that the Company shall not be required to pay or discharge, or cause any of its
Subsidiaries to pay or discharge, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established.
SECTION 4.14 MAINTENANCE OF PROPERTIES AND INSURANCE. The Company shall
cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided that nothing in
this Section 4.14 shall prevent the Company or any Restricted Subsidiary from
discontinuing the use, operation or maintenance of any of such properties or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company, desirable in the conduct of the business of the Company or such
Restricted Subsidiary.
44
The Company shall provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or any such Restricted Subsidiary, as the case may
be, is then conducting business.
SECTION 4.15 NOTICE OF DEFAULTS. In the event that any Officer becomes
aware of any Default or Event of Default, the Company shall promptly deliver to
the Trustee an Officers' Certificate specifying such Default or Event of
Default.
SECTION 4.16 COMPLIANCE CERTIFICATES. (a) The Company shall deliver to
the Trustee, within 120 days after the end of the Company's fiscal year, an
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal year. Such certificate shall
contain a certification from the principal executive officer, principal
financial officer or principal accounting officer of the Company that a review
has been conducted of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under this Indenture and that the Company has complied with all conditions and
covenants under this Indenture. For purposes of this Section 4.16, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. If any of the officers of
the Company signing such certificate has knowledge of such a Default or Event of
Default, the certificate shall describe any such Default or Event of Default and
its status. The first certificate to be delivered pursuant to this Section
4.16(a) shall be for the fiscal year in which this Indenture was executed.
(b) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, beginning with the fiscal year in which this Indenture
was executed, a certificate signed by the Company's independent certified public
accountants stating (i) that their audit examination has included a review of
the terms of this Indenture and the Notes as they relate to accounting matters,
(ii) that they have read the most recent Officers' Certificate delivered to the
Trustee pursuant to paragraph (a) of this Section 4.16 and (iii) whether, in
connection with their audit examination, anything came to their attention that
caused them to believe that the Company was not in compliance with any of the
terms, covenants, provisions or conditions of Article Four and Section 5.01 of
this Indenture as they pertain to accounting matters and, if any Default or
Event of Default has come to their attention, specifying the nature and period
of existence thereof; provided that such independent certified public
accountants shall not be liable in respect of such statement by reason of any
failure to obtain knowledge of any such Default or Event of Default that would
not be disclosed in the course of an audit examination conducted in accordance
with generally accepted auditing standards in effect at the date of such
examination.
SECTION 4.17 COMMISSION REPORTS AND REPORTS TO HOLDERS. Whether or not
the Company is then required to file reports with the Commission, the Company
shall file with the Commission all such reports and other information as it
would be required to file with the Commission by Sections 13(a) or 15(d) under
the Exchange Act if it were subject thereto, unless the Commission will not
accept such filing. The Company shall supply the Trustee and each Holder or
shall supply to the Trustee for forwarding to each such Holder, without cost to
such Holder, copies of such reports and other information. The Company also
shall comply with the other provisions of TIA Section 314(a).
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SECTION 4.18 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.19 DESIGNATION OF "DESIGNATED SENIOR INDEBTEDNESS". The
Company covenants that it shall not designate any Indebtedness other than
Indebtedness Incurred under the Credit Agreement as "Designated Senior
Indebtedness" under the Senior Subordinated Notes, the Senior Subordinated
Debentures or the Convertible Subordinated Debentures. The Notes issued pursuant
to this Indenture have not been designated as "Designated Senior Indebtedness"
under the Senior Subordinated Notes, the Senior Subordinated Debentures or the
Convertible Subordinated Debentures.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into the
Company, unless:
(i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or that acquired or leased such property and assets of the Company
shall be a corporation organized and validly existing under the laws of the
United States of America or any jurisdiction thereof and shall expressly assume,
by a supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Notes and under this Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on a
pro forma basis, the Company or any Person becoming the successor obligor of the
Notes shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such transaction;
provided that this clause (iii) shall not apply to a consolidation or merger;
(iv) immediately after giving effect to such transaction on a pro
forma basis, the Fixed Charge Coverage Ratio would be greater than 2:1; provided
that this clause (iv) shall not apply to a consolidation, merger or sale of all
(but not less than all) of the assets of the Company if all Liens and
Indebtedness of the Company or any Person becoming the successor obligor on the
Notes, as the case may be, and its Restricted Subsidiaries outstanding
immediately after such transaction would have been permitted (and all such Liens
and Indebtedness, other than Liens and Indebtedness of the Company and its
Restricted Subsidiaries outstanding immediately prior to the transaction, shall
be deemed to have been Incurred) for all purposes of this Indenture;
46
(v) the Company delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computations to demonstrate compliance with clauses
(iii) and (iv)) and Opinion of Counsel, in each case stating that such
consolidation, merger or transfer and such supplemental indenture complies with
this provision and that all conditions precedent provided for herein relating to
such transaction have been complied with; and
(vi) each Subsidiary Guarantor, unless such Subsidiary Guarantor
is the Person with which the Company has entered into a transaction under this
Section 5.01, shall have by amendment to its Note Guarantee confirmed that its
Note Guarantee shall apply to the obligations of the Company or the surviving
entity in accordance with the Notes and this Indenture;
provided, however, that clauses (iii) and (iv) above do not apply if, in the
good faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose of
such transaction is to change the state of incorporation of the Company and any
such transaction shall not have as one of its purposes the evasion of the
preceding limitations.
SECTION 5.02 SUCCESSOR SUBSTITUTED. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; provided that the Company shall not be released from its
obligation to pay the principal of, premium, if any, or interest on the Notes in
the case of a lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT. Any of the following events shall
constitute an "Event of Default" hereunder:
(a) default in the payment of principal of (or premium, if any, on) any
Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise;
(b) default in the payment of interest on any Note when the same becomes
due and payable, and such default continues for a period of 30 days;
(c) default in the performance or breach of the provisions of this
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of the Company or the failure to make or
consummate an Offer to Purchase in accordance with Section 4.10 and Section
4.11;
(d) the Company or any Subsidiary Guarantor defaults in the performance
of or breaches any other covenant or agreement of the Company in this Indenture
or under the Notes (other than a default specified in clause (a), (b) or (c)
above) and such default or breach continues for a period of 60 consecutive days
after written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount of the Notes;
(e) there occurs with respect to any issue or issues of Indebtedness of
the Company, any Significant Subsidiary or any group of Subsidiary Guarantors
that taken together would constitute a Significant Subsidiary,
47
having an outstanding principal amount of $20 million or more in the aggregate
for all such issues of all such Persons, whether such Indebtedness now exists or
shall hereafter be created, (i) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its Stated
Maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration or (ii) the failure to make a principal payment at the final (but
not any interim) fixed maturity and such defaulted payment shall not have been
made, waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for the
payment of money in excess of $20 million in the aggregate for all such final
judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company, any Significant Subsidiary or any group of Subsidiary Guarantors that
taken together would constitute a Significant Subsidiary, and shall not be paid
or discharged, and there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged against
all such Persons to exceed $20 million during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;
(g) a court having jurisdiction in the premises enters a decree or order
for (A) relief in respect of the Company, any Significant Subsidiary or any
group of Subsidiary Guarantors that taken together would constitute a
Significant Subsidiary, in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant Subsidiary, or for
all or substantially all of the property and assets of the Company, any
Significant Subsidiary or any group of Subsidiary Guarantors that taken together
would constitute a Significant Subsidiary, or (C) the winding up or liquidation
of the affairs of the Company, any Significant Subsidiary or any group of
Subsidiary Guarantors that taken together would constitute a Significant
Subsidiary, and, in each case, such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days;
(h) the Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant Subsidiary, (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company, any
Significant Subsidiary or any group of Subsidiary Guarantors that taken together
would constitute a Significant Subsidiary, or for all or substantially all of
the property and assets of the Company, or any Significant Subsidiary or any
group of Subsidiary Guarantors that taken together would constitute a
Significant Subsidiary, or (C) effects any general assignment for the benefit of
creditors; or
(i) except as permitted by this Indenture, any Subsidiary Guarantor
repudiates its obligations under its Note Guarantee or any Note Guarantee is
determined to be unenforceable or invalid or shall for any reason cease to be in
full force and effect.
SECTION 6.02 ACCELERATION. If an Event of Default (other than an Event
of Default specified in clause (g) or (h) of Section 6.01 that occurs with
respect to the Company or a Subsidiary Guarantor that is a Significant
Subsidiary or any group of Subsidiary Guarantors that taken together would
constitute a Significant Subsidiary) occurs and is continuing under this
Indenture, the Trustee or the Holders of at least 25% in
48
aggregate principal amount of the Notes then outstanding, by written notice to
the Company (and to the Trustee if such notice is given by the Holders), may,
and the Trustee at the request of such Holders shall, declare the principal of,
premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal of, premium, if any,
and accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in clause (e)
of Section 6.01 has occurred and is continuing, such declaration of acceleration
shall be automatically rescinded and annulled if the event of default triggering
such Event of Default pursuant to clause (e) shall be remedied or cured by the
Company, the relevant Significant Subsidiary or the relevant group of Subsidiary
Guarantors or waived by the holders of the relevant Indebtedness within 60 days
after the declaration of acceleration with respect thereto. If an Event of
Default specified in clause (g) or (h) of Section 6.01 occurs with respect to
the Company or a Subsidiary Guarantor that is a Significant Subsidiary or any
group of Subsidiary Guarantors that taken together would constitute a
Significant Subsidiary, the principal of, premium, if any, and accrued interest
on the Notes then outstanding shall automatically become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder.
The Holders of at least 66 2/3% in aggregate principal amount of the
outstanding Notes by written notice to the Company and to the Trustee, may waive
all past Defaults and rescind and annul a declaration of acceleration and its
consequences if all existing Events of Default, other than the non-payment of
the principal of, premium, if any, and accrued interest on the Notes that have
become due solely by such declaration of acceleration, have been cured or waived
and the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
SECTION 6.03 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least a
majority in principal amount of the outstanding Notes shall, pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture. The Trustee may
maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding.
SECTION 6.04 WAIVER OF PAST DEFAULTS. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least 66 2/3% in aggregate principal amount of the
outstanding Notes, by notice to the Trustee, may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of, premium, if any, or interest on any Note as specified in clause
(a) or (b) of Section 6.01 or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of the Holder
of each outstanding Note affected. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 6.05 CONTROL BY MAJORITY. The Holders of at least a majority in
aggregate principal amount of the outstanding Notes may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee; provided that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability, or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders of Notes not joining in the giving of such direction; and provided
further that the Trustee may take any other action it deems proper that is not
inconsistent with any such direction received from Holders of Notes.
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SECTION 6.06 LIMITATION ON SUITS. A Holder may not institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Notes,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) the Holder has previously given the Trustee written notice of
a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes shall have made a written request to the Trustee to pursue
such remedy;
(iii) such Holder or Holders offer the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee a
direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this Section 6.06,
the Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the required aggregate principal amount of outstanding
Notes have concurred in any request or direction of the Trustee to pursue any
remedy available to the Trustee or the Holders with respect to this Indenture or
the Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive
payment of the principal of, premium, if any, or interest on, such Note or to
bring suit for the enforcement of any such payment, on or after the due date
expressed in the Notes, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE. If an Event of Default in
payment of principal, premium or interest specified in clause (a), (b) or (c) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor of the Notes for the whole amount of principal, premium, if any, and
accrued interest remaining unpaid, together with interest on overdue principal,
premium, if any, and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate specified
in the Notes, and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor of the Notes), its creditors or its property
and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Notes or upon any such claims and to distribute the same, and
50
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for principal of,
premium, if any, and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or any other obligors of the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07, or a suit by Holders of more than 10% in principal amount of the
outstanding Notes.
SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Company, Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.13 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Notes in Section 2.07, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION 6.14 DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article Six or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 GENERAL. The duties and responsibilities of the Trustee
shall be as provided by the TIA and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Article Seven.
SECTION 7.02 CERTAIN RIGHTS OF TRUSTEE. Subject to TIA Sections 315(a)
through (d):
(i) the Trustee may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper
person;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall conform
to Section 11.04. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers, provided that the Trustee's conduct does not constitute
negligence or bad faith;
(vi) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
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(vii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company personally or by agent or
attorney; and
(viii) except with respect to Section 4.01 hereof, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article IV hereof.
In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (1) any Event of Default occurring pursuant
to Sections 6.01(a), 6.01(b) and 4.01 hereof or (2) any Default or Event of
Default of which the Trustee shall have received written notification in the
manner set forth in this Indenture or a Responsible Officer shall have obtained
actual knowledge. Delivery of reports, information and documents to the Trustee
under Section 4.17 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein, or determinable from information contained therein including
the Company's compliance with any of their covenants thereunder (as to which the
Trustee is entitled to rely exclusively on an Officers' Certificate).
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04 TRUSTEE'S DISCLAIMER. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the Notes,
(ii) shall not be accountable for the Company's use or application of the
proceeds from the Notes and (iii) shall not be responsible for any statement in
the Notes other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULT. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is known to the
Trustee, the Trustee shall mail to each Holder in the manner and to the extent
provided in TIA Section 313(c) notice of the Default or Event of Default within
45 days after it occurs, unless such Default or Event of Default has been cured;
provided, however, that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Note, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 15, beginning with May 15, 2003, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report dated as of such May 15, if
required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange or of any delisting thereof.
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SECTION 7.07 COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by the Trustee without negligence or bad faith on its part.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Company and each Subsidiary Guarantor shall indemnify the Trustee
for, and hold it harmless against, any loss or liability or expense incurred by
it without negligence or bad faith on its part in connection with the acceptance
or administration of this Indenture and its duties under this Indenture and the
Notes, including the costs and expenses of defending itself against any claim or
liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture and the Notes. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder, unless the Company is materially prejudiced thereby. The Company
shall defend the claim and the Trustee shall cooperate in the defense. Unless
otherwise set forth herein, the Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee, in its capacity as Trustee, except money or property
held in trust to pay principal of, premium, if any, and interest on particular
Notes.
If the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in clause (g) or (h) of Section 6.01, the
expenses and the compensation for the services will be intended to constitute
expenses of administration under Title 11 of the United States Bankruptcy Code
or any applicable federal or state law for the relief of debtors.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
SECTION 7.08 REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company. The Company may remove the Trustee if:
(i) the Trustee is no longer eligible under Section 7.10; (ii) the Trustee is
adjudged a bankrupt or an insolvent; (iii) a receiver or other public officer
takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
54
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Notes may, at the expense
of the Company, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder. No successor Trustee
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
If the Trustee is no longer eligible under Section 7.10 or shall fail to
comply with TIA Section 310(b), any Holder who satisfies the requirements of TIA
Section 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.08, the Trustee shall resign immediately in the manner and with the
effect provided in this Section.
The Company shall give notice of any resignation and any removal of the
Trustee and each appointment of a successor Trustee to all Holders. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligation under Section 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein, provided such corporation shall be otherwise qualified and eligible
under this Article.
SECTION 7.10 ELIGIBILITY. This Indenture shall always have a Trustee
who satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $25 million as set forth in its most
recent published annual report of condition that is subject to the requirements
of applicable Federal or state supervising or examining authority. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in this Article.
SECTION 7.11 MONEY HELD IN TRUST. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article Eight of this Indenture.
55
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01 TERMINATION OF COMPANY'S OBLIGATIONS. Except as otherwise
provided in this Section 8.01, the Company may terminate its obligations under
the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes that are
paid pursuant to Section 4.01 or Notes for whose payment money or securities
have theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.05) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder; or
(ii) (A) all Notes not previously delivered to the Trustee for
cancellation have become due and payable or will become due and payable at their
Stated Maturity within one year or are to be called for redemption within one
year upon arrangements reasonably satisfactory to the Trustee for the giving of
notice of redemption, and the Company has deposited or caused to be deposited
with the Trustee funds in trust for such purpose in an amount sufficient to pay
and discharge the entire Indebtedness on such Notes not previously delivered to
the Trustee for cancellation, for principal (and premium, if any, on), and
interest on the Notes to the date of such deposit (in the case of Notes that
have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be, (B) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, (C) the
Company shall have delivered an Officers' Certificate stating that such deposit
will not result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound and (D) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that the
Company has complied with all conditions precedent provided for herein relating
to the satisfaction and discharge of this Indenture.
With respect to the foregoing clause (i), the Company's obligations
under Section 7.07 shall survive. With respect to the foregoing clause (ii), the
Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.11,
4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes are no
longer outstanding. Thereafter, only the Company's obligations in Sections 7.07,
8.04, 8.05 and 8.06 shall survive. After any such irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture except for those surviving
obligations specified above.
SECTION 8.02 DEFEASANCE AND DISCHARGE OF INDENTURE. The Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Notes on the 91st day after the date of the deposit referred to
in clause (A) of this Section 8.02, and the provisions of this Indenture will no
longer be in effect with respect to the Notes, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same if:
(A) with reference to this Section 8.02, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.10) and conveyed all right,
title and interest to the Trustee for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the benefit of
the Holders, in and to (1) money in
56
an amount, (2) U.S. Government Obligations that, through the payment of
interest, premium, if any, and principal in respect thereof in accordance with
their terms, will provide, not later than one day before the due date of any
payment referred to in this clause (A), money in an amount or (3) a combination
thereof in an amount sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, without consideration of the
reinvestment of such interest and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof payable by the
Trustee, the principal of, premium, if any, and interest on the outstanding
Notes on the Stated Maturity of such principal or interest or on the applicable
Redemption Date, as the case may be, and the Company must specify whether the
Notes are being defeased to maturity or to a particular Redemption Date;
provided that the Company shall have irrevocably instructed the Trustee to apply
such money or the proceeds of such U.S. Government Obligations to the payment of
such principal, premium, if any, and interest with respect to the Notes;
(B) the Company has delivered to the Trustee (1) either (x) an Opinion
of Counsel reasonably acceptable to the Trustee to the effect that Holders will
not recognize income, gain or loss for federal income tax purposes as a result
of the Company's exercise of its option under this Section 8.02 and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such option had not been
exercised, which Opinion of Counsel shall be based upon (and accompanied by a
copy of) a ruling of the Internal Revenue Service to the same effect unless
there has been a change in applicable federal income tax law after the Closing
Date such that a ruling is no longer required or (y) a ruling directed to the
Trustee received from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (2) an Opinion of Counsel reasonably
acceptable to the Trustee to the effect that the creation of the defeasance
trust does not violate the Investment Company Act of 1940 and that after the
passage of 90 days following the deposit, the trust funds will not be subject to
the effect of Section 547 of the United States Bankruptcy Code in a case
commenced by or against the Company under such statute, and either (I) the trust
funds will no longer remain the property of the Company (and therefore will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally) or (II) if
a court were to rule under any such law in any case or proceeding that the trust
funds remained property of the Company, (a) assuming such trust funds remained
in the possession of the Trustee prior to such court ruling to the extent not
paid to the Holders, the Trustee will hold, for the benefit of the Holders, a
valid and perfected security interest in such trust funds that is not avoidable
in bankruptcy or otherwise except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing after the
commencement of a case under such statute and (b) the Holders will be entitled
to receive adequate protection of their interests in such trust funds if such
trust funds are used in such case or proceeding;
(C) immediately after giving effect to such deposit, on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or during the period ending on the 91st day after such
date of such deposit, and the Company shall have delivered an Officers'
Certificate stating that such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound; and
(D) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02
have been complied with.
57
Notwithstanding the foregoing, prior to the end of the 90-day period
referred to in clause (B)(2) of this Section 8.02, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the end of
such 90-day period with respect to this Section 8.02, the Company's obligations
in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.11, 4.02, 8.04, 8.05, 8.06 and
the rights, powers, trusts, duties and immunities of the Trustee hereunder shall
survive until the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07, 8.04, 8.05 and 8.06 shall survive. If
and when a ruling from the Internal Revenue Service or an Opinion of Counsel
referred to in clause (B)(1) of this Section 8.02 is able to be provided
specifically without regard to, and not in reliance upon, the continuance of the
Company's obligations under Section 4.01, then the Company's obligations under
such Section 4.01 shall cease upon delivery to the Trustee of such ruling or
Opinion of Counsel and compliance with the other conditions precedent provided
for herein relating to the defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Notes and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03 DEFEASANCE OF CERTAIN OBLIGATIONS. The Company may omit to
comply with any term, provision or condition set forth in clauses (iii) and (iv)
of Section 5.01 and Sections 4.03 through 4.11 and clause (c) of Section 6.01
with respect to clauses (iii) and (iv) of Section 5.01, clauses (d), (e), (f)
and (i) of Section 6.01 and, except with respect to the Company or a Subsidiary
Guarantor, clauses (g) and (h) of Section 6.01 shall be deemed not to be Events
of Default, in each case with respect to the outstanding Notes if:
(i) with reference to this Section 8.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 7.10) and conveyed all right,
title and interest to the Trustee for the benefit of the Holders, under the
terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee for the
benefit of the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the benefit of
the Holders, in and to (A) money in an amount, (B) U.S. Government Obligations
that, through the payment of interest, premium, if any, and principal in respect
thereof in accordance with their terms, will provide, not later than one day
before the due date of any payment referred to in this clause (i), money in an
amount or (C) a combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, the principal of, premium, if any, and interest
on the outstanding Notes on the Stated Maturity of such principal or interest or
on the applicable Redemption Date, as the case may be, and the Company must
specify whether the Notes are being defeased to maturity or to a particular
Redemption Date; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium, if any, and interest with
respect to the Notes;
(ii) the Company has delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee to the effect that (A) the creation of the
defeasance trust does not violate the Investment Company Act of 1940, (B) after
the passage of 90 days following the deposit, the trust funds will not be
subject to the effect of Section 547 of the United States Bankruptcy Code in a
case commenced by or against the Company under such statute, and either (1) the
trust funds will no longer remain the property of the Company (and therefore
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting
58
creditors' rights generally) or (2) if a court were to rule under any such law
in any case or proceeding that the trust funds remained property of the Company,
(x) assuming such trust funds remained in the possession of the Trustee prior to
such court ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest in such
trust funds that is not avoidable in bankruptcy or otherwise (except for the
effect of Section 552(b) of the United States Bankruptcy Code on interest on the
trust funds accruing after the commencement of a case under such statute) and
(y) the Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used in such case or
proceeding and (C) the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit and defeasance had not occurred;
(iii) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or during the period ending on the 91st day after such
date of such deposit, and the Company shall have delivered an Officers'
Certificate stating that such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound; and
(iv) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.03
have been complied with.
SECTION 8.04 APPLICATION OF TRUST MONEY. Subject to Section 8.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes and this Indenture to the payment of
principal of, premium, if any, and interest on the Notes; but such money need
not be segregated from other funds except to the extent required by law.
SECTION 8.05 REPAYMENT TO COMPANY. Subject to Sections 7.07, 8.01, 8.02
and 8.03, the Trustee and the Paying Agent shall promptly pay to the Company
upon request set forth in an Officers' Certificate any excess money held by them
at any time and thereupon shall be relieved from all liability with respect to
such money. The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years; provided that the Trustee or
Paying Agent before being required to make any payment may cause to be published
at the expense of the Company once in a newspaper of general circulation in The
City of New York or mail to each Holder entitled to such money at such Holder's
address (as set forth in the Security Register) notice that such money remains
unclaimed and that after a date specified therein (which shall be at least 30
days from the date of such publication or mailing) any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
SECTION 8.06 REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 8.01,
8.02 or 8.03, as the case may be, by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
59
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 8.01, 8.02 or
8.03, as the case may be; provided that, if the Company has made any payment of
principal of, premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Company, when authorized
by a resolution of its Board of Directors (as evidenced by a Board Resolution
delivered to the Trustee), and the Trustee may amend or supplement this
Indenture or the Notes without notice to or the consent of any Holder to:
(1) cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements do not, in the good faith opinion
of the Board of Directors as evidenced by a Board Resolution, adversely affect
the interests of the Holders in any material respect;
(2) comply with Article Five and Section 4.06;
(3) comply with any requirements of the Commission in connection with
the qualification of this Indenture under the TIA;
(4) evidence and provide for the acceptance of appointment hereunder by
a successor Trustee;
(5) to provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner such
that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Code); or
(6) make any change that, in the good faith opinion of the Board of
Directors as evidenced by a Board Resolution, does not materially and adversely
affect the rights of any Holder.
SECTION 9.02 WITH CONSENT OF HOLDERS. Subject to Sections 6.04 and 6.07
and without prior notice to the Holders, the Company, when authorized by its
Board of Directors (as evidenced by a Board Resolution delivered to the
Trustee), and the Trustee may amend or supplement this Indenture and the Notes
with the written consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Notes then outstanding, and the Holders of not less than
66 2/3% in aggregate principal amount of the Notes then outstanding by written
notice to the Trustee may waive future compliance by the Company with any
provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02, without the consent
of each Holder affected, an amendment or waiver, including a waiver pursuant to
Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any installment
of interest on, any Note;
60
(ii) change the optional Redemption Dates or optional Redemption Prices
of the Notes from that stated under Section 3.01;
(iii) reduce the principal amount of, premium, if any, or interest on
any Note;
(iv) change any place or currency of payment of principal of, premium,
if any, or interest on, any Note;
(v) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of redemption, on or
after the Redemption Date) on any Note;
(vi) waive a default in the payment of principal of, premium, if any, or
interest on, any Note;
(vii) release any Subsidiary Guarantor from its Note Guarantee, except
as provided in this Indenture; or
(viii) reduce the percentage or aggregate principal amount of
outstanding Notes the consent of whose Holders is required pursuant to Sections
6.04 or 6.07 or this Section 9.02.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03 REVOCATION AND EFFECT OF CONSENT. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in the second paragraph of
Section 9.02. In case of an amendment or waiver of the type described in the
second paragraph of Section 9.02, the amendment or waiver shall bind each Holder
who has
61
consented to it and every subsequent Holder of a Note that evidences the same
indebtedness as the Note of the consenting Holder.
SECTION 9.04 NOTATION ON OR EXCHANGE OF NOTES. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder to deliver such Note to the Trustee. At the Company's expense, the
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Note thereafter authenticated. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation, or issue a new Note, shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.05 TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and that it will be valid and binding upon the Company. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.06 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect.
ARTICLE TEN
NOTE GUARANTEES
SECTION 10.01 NOTE GUARANTEE. By its execution hereof, each of the
Subsidiary Guarantors acknowledges and agrees that it receives substantial
benefits from the Company and that such party is providing its Guarantee for
good and valuable consideration, including, without limitation, such substantial
benefits and services. Accordingly, subject to the provisions of this Article
Ten, each of the Subsidiary Guarantors hereby, jointly and severally, fully and
unconditionally Guarantees, to the extent permitted by law, to each Holder of
Notes hereunder and to the Trustee on behalf of the Holders: (i) the due and
punctual payment of the principal of, premium, if any, and interest on each
Note, when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of and interest, if any, on the Notes, to the extent lawful,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee, all in accordance with the terms of such Note and
this Indenture and (ii) in the case of any extension of time of payment or
renewal of any Notes or any of such other obligations under such Note or the
Indenture, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, at Stated Maturity, by
acceleration or otherwise, subject, however, in the case of clauses (i) and (ii)
above, to the limitations set forth in the second succeeding paragraph.
Each Note Guarantee shall be Guaranteed on a senior basis.
Each Subsidiary Guarantor and by its acceptance hereof each Holder
hereby confirms that it is the intention of all such parties that the Guarantee
by such Subsidiary Guarantor pursuant to its Note Guarantee not constitute a
fraudulent transfer or conveyance for purposes of the United States Bankruptcy
Code, the Uniform
62
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal or state law. To effectuate the foregoing intention, the Holders and
such Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under its Note Guarantee shall be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Note Guarantee or pursuant to the following paragraph, result in the
obligations of such Subsidiary Guarantor under its Note Guarantee not
constituting such fraudulent transfer or conveyance.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Subsidiary Guarantor") under its Note Guarantee, such Funding
Subsidiary Guarantor shall be entitled to a contribution from all other
Subsidiary Guarantors in a pro rata amount based on the Adjusted Net Assets of
each Subsidiary Guarantor (including the Funding Subsidiary Guarantor) for all
payments, damages and expenses incurred by that Funding Subsidiary Guarantor in
discharging the Company's obligations with respect to the Notes or any other
Subsidiary Guarantor's obligations with respect to its Note Guarantee. "Adjusted
Net Assets" of such Subsidiary Guarantor at any date shall mean the lesser of
the amount by which (x) the fair value of the property of such Subsidiary
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Note Guarantee, of such Subsidiary Guarantor at such date
and (y) the present fair salable value of the assets of such Subsidiary
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Subsidiary Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any Subsidiary of such
Subsidiary Guarantor in respect of the obligations of such Subsidiary under the
Note Guarantee of such Subsidiary Guarantor), excluding debt in respect of its
Note Guarantee, as they become absolute and matured.
Each of the Subsidiary Guarantors hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a proceeding first against the
Company, the benefit of discussion, protest or notice with respect to any such
Note or the debt evidenced thereby and all demands whatsoever (except as
specified above), and covenants that this Note Guarantee will not be discharged
as to any such Note except by payment in full of the principal thereof and
interest thereon and as provided in Sections 8.01, 8.02 and 8.03. In the event
of any declaration of acceleration of such obligations as provided in Article
Six, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Subsidiary Guarantors for the purposes of this Article
Ten. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article Six, the Trustee shall promptly
make a demand for payment on the Notes under the Note Guarantee provided for in
this Article Ten.
The obligations of each Subsidiary Guarantor under its Note Guarantee
are independent of the obligations Guaranteed by such Subsidiary Guarantor
hereunder, and a separate action or actions may be brought and prosecuted by the
Trustee on behalf of, or by, the Holders, subject to the terms and conditions
set forth in this Indenture, against a Subsidiary Guarantor to enforce this
Guarantee, irrespective of whether any action is brought against the Company or
whether the Company is joined in any such action or actions.
If the Trustee or the Holder is required by any court or otherwise to
return to the Company or any Subsidiary Guarantor, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in relation
to Company or such Subsidiary Guarantor, any amount paid to the Trustee or such
Holder in respect
63
of a Note, this Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each of the Subsidiary Guarantors further
agrees, to the fullest extent that it may lawfully do so, that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, the
maturity of the obligations Guaranteed hereby may be accelerated as provided in
Article Six hereof for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations Guaranteed hereby.
Each of the Subsidiary Guarantors hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the Company or any
other Subsidiary Guarantor that arise from the existence, payment, performance
or enforcement of its obligations under this Note Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of the Holders against the Company or any Subsidiary Guarantor
or any collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company or a Subsidiary Guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights until such time as
all of the obligations under the Notes and this Indenture are indefeasibly and
irrevocably paid in full in cash. If any amount shall be paid to a Subsidiary
Guarantor in violation of the preceding sentence and the principal of, premium,
if any, and accrued interest on the Notes shall not have been paid in full, such
amount shall be deemed to have been paid to such Subsidiary Guarantor for the
benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited
and applied upon the principal of, premium, if any, and accrued interest on the
Notes. Each of the Subsidiary Guarantors acknowledges that it will receive
direct and indirect benefits from the issuance of the Notes pursuant to this
Indenture and that the waivers set forth in this Section 10.01 are knowingly
made in contemplation of such benefits.
The Note Guarantee set forth in this Section 10.01 shall not be valid or
become obligatory for any purpose with respect to a Note until the certificate
of authentication on such Note shall have been signed by or on behalf of the
Trustee.
SECTION 10.02 OBLIGATIONS UNCONDITIONAL. Nothing contained in this
Article Ten or elsewhere in this Indenture or in the Notes is intended to or
shall impair, as among any Subsidiary Guarantor and the Holders of the Notes,
the obligation of such Subsidiary Guarantor, which is absolute and
unconditional, upon failure by the Company, to pay to the Holders of the Notes
the principal of, premium, if any, and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders and creditors of such
Subsidiary Guarantor, nor shall anything herein or therein prevent any Holder or
the Trustee on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this Article Ten
will restrict the right of the Trustee or the Holders to take any action to
declare the Note Guarantee to be due and payable prior to the Stated Maturity of
any Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder.
SECTION 10.03 RELEASE OF NOTE GUARANTEES. The Note Guarantee issued by
any Subsidiary Guarantor will be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer to any Person (other than the
Company or another Restricted Subsidiary of the Company) of all of the Capital
Stock of such Subsidiary Guarantor, (ii) the designation of such Subsidiary
Guarantor as an Unrestricted
64
Subsidiary, in each case in compliance with the terms of this Indenture, or
(iii) the release or discharge of the Guarantee which resulted in the creation
of such Note Guarantee pursuant to Section 4.06.
SECTION 10.04 NOTICE TO TRUSTEE. A Subsidiary Guarantor shall give
prompt written notice to the Trustee of any fact known to such Subsidiary
Guarantor which would prohibit the making of any payment to or by the Trustee in
respect of the Note Guarantee pursuant to the provisions of this Article Ten.
SECTION 10.05 THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT. The failure
to make a payment on account of principal of, premium, if any, or interest on
the Notes by reason of any provision of this Article Ten will not be construed
as preventing the occurrence of an Event of Default.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 TRUST INDENTURE ACT OF 1939. Prior to the effectiveness of
any registration statement under the Securities Act covering any Notes, this
Indenture shall incorporate and be governed by the provisions of the TIA that
are required to be part of and to govern indentures qualified under the TIA.
After the effectiveness of any such registration statement, this Indenture shall
be subject to the provisions of the TIA that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 11.02 NOTICES. Any notice or communication shall be sufficiently
given if in writing and delivered in person, mailed by first-class mail or sent
by telecopier transmission addressed as follows:
if to the Company:
URS Corporation
100 California Street, Suite 500
San Francisco, CA 94111
Telecopier No.: (415) 398-2621
Attention: Chief Financial Officer
if to the Trustee:
U.S. Bank, N.A.
180 East 5th Street
St. Paul, MN 55101
Telecopier No.: (651) 244-0711
Attention:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to it at
its address as it appears on the Security Register by first-class mail and shall
be sufficiently given to him if so mailed within the time prescribed. Any notice
or communication shall also be so mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time.
65
Failure to mail a notice or communication to a Holder as provided herein
or any defect in any such notice or communication shall not affect its
sufficiency with respect to other Holders. Except for a notice to the Trustee,
which is deemed given only when received, and except as otherwise provided in
this Indenture, if a notice or communication is mailed in the manner provided in
this Section 11.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.03 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of such Counsel,
all such conditions precedent have been complied with.
SECTION 11.04 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based;
(iii) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided, however,
that, with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
66
SECTION 11.05 RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 11.06 PAYMENT DATE OTHER THAN A BUSINESS DAY. If an Interest
Payment Date, Redemption Date, Payment Date, Stated Maturity or date of maturity
of any Note shall not be a Business Day, then payment of principal of, premium,
if any, or interest on such Note, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Payment Date or Redemption
Date, or at the Stated Maturity or date of maturity of such Note; provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Payment Date, Redemption Date, Stated Maturity or date of maturity, as the
case may be.
SECTION 11.07 GOVERNING LAW. This Indenture and the Notes shall be
governed by the laws of the State of New York. The Trustee, the Company, each
Subsidiary Guarantor and the Holders agree to submit to the jurisdiction of the
courts of the State of New York in any action or proceeding arising out of or
relating to this Indenture or the Notes.
SECTION 11.08 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any Subsidiary of the Company. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.09 NO RECOURSE AGAINST OTHERS. No recourse for the payment of
the principal of, premium, if any, or interest on any of the Notes, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company contained in this
Indenture or in any of the Notes, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator or against any past,
present or future partner, stockholder, other equityholder, officer, director,
employee or controlling person, as such, of the Company, any Subsidiary
Guarantor, or of any successor Person thereof, either directly or through the
Company or any successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Notes.
SECTION 11.10 SUCCESSORS. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 11.11 DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.12 SEPARABILITY. In case any provision in this 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 11.13 TABLE OF CONTENTS, HEADINGS, ETC. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this
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
and provisions hereof.
67
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
URS CORPORATION, a Delaware corporation
By: /s/ Kent P. Ainsworth
-------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President,
Chief Financial Officer
and Secretary
AMAN ENVIRONMENTAL CONSTRUCTION,
INC., a California corporation
By: /s/ Jeffrey M. Kissel
-------------------------------
Name: Jeffrey M. Kissel
Title: Chief Financial Officer
BANSHEE CONSTRUCTION COMPANY, INC.,
a California corporation
By: /s/ Michael T. Orear
-------------------------------
Name: Michael T. Orear
Title: President
BRW, INC., a Wyoming corporation
By: /s/ Kent P. Ainsworth
-------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President
and Chief Financial Officer
CLEVELAND WRECKING COMPANY, a
California corporation
By: /s/ James P. Sheridan
-------------------------------
Name: James P. Sheridan
Title: President
CONTRACTING RESOURCES INTERNATIONAL,
INC., a Delaware corporation
By: /s/ Joseph Masters
-------------------------------
Name: Joseph Masters
Title: Vice President
68
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
O'BRIEN-KREITZBERG INC., a
California corporation
By: /s/ Jeffrey M. Kissel
-------------------------------
Name: Jeffrey M. Kissel
Title: Chief Financial Officer
RADIAN INTERNATIONAL LLC, a
Delaware limited liability company
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
SIGNET TESTING LABORATORIES, INC.,
a Delaware corporation
By: /s/ Kent P. Ainsworth
-------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President,
Chief Financial Officer
and Secretary
URS CONSTRUCTION SERVICES, INC., a
Florida corporation
By: /s/ Kent P. Ainsworth
-------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President
and Chief Financial Officer
URS CORPORATION, a Nevada corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
URS CORPORATION GREAT LAKES, a
Michigan corporation
By: /s/ Kent P. Ainsworth
-------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President
and Chief Financial Officer
69
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
URS CORPORATION GROUP CONSULTANTS,
a New York corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
URS CORPORATION--MARYLAND, a
Maryland corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
URS CORPORATION -- OHIO, an Ohio
corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
URS CORPORATION SOUTHERN, a
California corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
URS GROUP, INC., a Delaware corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Assistant Treasurer
URS HOLDINGS, INC., a Delaware
corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
70
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
URS-LSS HOLDINGS, INC., a Delaware
corporation
By: /s/ Kent P. Ainsworth
-------------------------------
Name: Kent P. Ainsworth
Title: Vice President and
Treasurer
URS OPERATING SERVICES, INC., a
Delaware corporation
By: /s/ Peter J. Pedalino
-------------------------------
Name: Peter J. Pedalino
Title: Vice President and
Controller
WALK, HAYDEL & ASSOCIATES, INC., a
Louisiana corporation
By: /s/ Kent P. Ainsworth
-------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President
and Chief Financial Officer
71
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
EG&G TECHNICAL SERVICES, INC., a
Delaware corporation
By: /s/ William Neeb
-------------------------------
Name: William Neeb
Title: Vice President, Chief Financial
Officer, Assistant Treasurer
and Assistant Secretary
EG&G DEFENSE MATERIALS, INC., a
Utah corporation
By: /s/ William Neeb
-------------------------------
Name: William Neeb
Title: Vice President and
Chief Financial Officer
72
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
URS INTERNATIONAL, INC., a Delaware
corporation
By: /s/ David C. Nelson
-------------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
73
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
U.S. BANK, N.A.
By: /s/ Richard H. Prokosch
-------------------------------
Name: Richard H. Prokosch
Title: Vice President
74
SCHEDULE I
SUBSIDIARY GUARANTORS
Name Jurisdiction of Organization
- ----------------------------------------- ---------------------------------
Aman Environmental Construction, Inc. California
Banshee Construction Company, Inc. California
BRW, Inc. Wyoming
Cleveland Wrecking Company California
Contracting Resources International, Inc. Delaware
EG&G Defense Materials, Inc. Utah
EG&G Technical Services, Inc. Delaware
O'Brien-Kreitzberg Inc. California
Radian International LLC Delaware
Signet Testing Laboratories, Inc. Delaware
URS Construction Services, Inc. Florida
URS Corporation Nevada
URS Corporation Great Lakes Michigan
URS Corporation Group Consultants New York
URS Corporation-Maryland Maryland
URS Corporation - Ohio Ohio
URS Corporation Southern California
URS Group, Inc. Delaware
URS Holdings, Inc. Delaware
URS International, Inc. Delaware
URS-LSS Holdings, Inc. Delaware
URS Operating Services, Inc. Delaware
Walk, Haydel & Associates, Inc. Louisiana
75
RULE 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO INITIAL NOTES,
PRIVATE EXCHANGE NOTES
AND EXCHANGE NOTES
1. Definitions
1.1 Definitions
For the purposes of this Appendix and the Indenture the following terms
shall have the meanings indicated below:
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Temporary Regulation S Global Security or beneficial
interest therein, the rules and procedures of the Depository, Euroclear and
Clearstream for such a Temporary Regulation S Global Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Clearstream" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"Definitive Security" means a certificated Initial Note or
Exchange Note or Private Exchange Note bearing, if required, the restricted
securities legend set forth in Section 2.3(e) hereof.
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Distribution Compliance Period", with respect to any Notes,
means the period of 40 consecutive days beginning on and including the later of
(i) the day on which such Notes are first offered to Persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the Closing Date with respect to such Notes.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System or any successor securities clearing agency.
"Exchange Notes" means (1) the 11 1/2% Senior Notes due 2009
issued pursuant to the Indenture in connection with a Registered Exchange Offer
pursuant to a Registration Rights Agreement and (2) Additional Notes, if any,
issued pursuant to a registration statement filed with the SEC under the
Securities Act.
"Initial Purchasers" means (1) with respect to the Initial Notes
issued on the Closing Date, Credit Suisse First Boston Corporation, Wells Fargo
Securities, L.L.C., The Royal Bank of Scotland plc, BNP Paribas Securities
Corp., BMO Nesbitt Burns Corp. and ING Financial Markets, LLC and (2) with
respect to each issuance of Additional Notes, the Persons purchasing such
Additional Notes under the related Purchase Agreement.
"Initial Notes" means (1) $200 million aggregate principal amount
of 11 1/2% Senior Notes due 2009 issued on the Closing Date and (2) Additional
Notes, if any, issued in a transaction exempt from the registration requirements
of the Securities Act.
"Notes" or "Securities" means the Initial Notes, the Exchange
Notes and the Private Exchange Notes, treated as a single class.
"Private Exchange" means the offer by the Company, pursuant to a
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
each Initial Purchaser, in exchange for the Initial Notes held by the Initial
Purchaser as part of its initial distribution, a like aggregate principal amount
of Private Exchange Notes.
"Private Exchange Notes" means any 11 1/2% Senior Notes due 2009
issued in connection with a Private Exchange.
"Purchase Agreement" means (1) with respect to the Initial Notes
issued on the Closing Date, the Purchase Agreement dated August 14, 2002, among
the Company, the Subsidiary Guarantors and the Initial Purchasers, and (2) with
respect to each issuance of Additional Notes, the purchase agreement or
underwriting agreement among the Company and the Persons purchasing such
Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Rights Agreement, to certain Holders of Initial
Notes, to issue and deliver to such Holders, in exchange for the Initial Notes,
a like aggregate principal amount of Exchange Notes registered under the
Securities Act.
"Registration Rights Agreement" means (1) with respect to the
Initial Notes issued on the Closing Date, the registration rights agreement
dated August 22, 2002, among the Company and the Initial Purchasers, and (2)
with respect to each issuance of Additional Notes issued in a transaction exempt
from the registration requirements of the Securities Act, the registration
rights agreement, if any, among the Company and the Persons purchasing such
Additional Notes under the related Purchase Agreement.
"Rule 144A Securities" means all Initial Notes offered and sold
to QIBs in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository), or any successor Person
thereto and shall initially be the Trustee.
"Shelf Registration Statement" means the registration statement
issued by the Company in connection with the offer and sale of Initial Notes or
Private Exchange Notes pursuant to a Registration Rights Agreement.
"Transfer Restricted Securities" means Notes that bear or are
required to bear the legend set forth in Section 2.3(e) hereto.
2
1.2 Other Definitions
Defined in
Term Section
---- -----------
"Agent Members"................................................2.1(b)
"Global Security"..............................................2.1(a)
"Permanent Regulation S Global Security".......................2.1(a)
"Regulation S..................................................2.1(a)
"Rule 144A"....................................................2.1(a)
"Rule 144A Global Security"....................................2.1(a)
"Temporary Regulation S Global Security".......................2.1(a)
2. The Securities.
2.1 (a) Form and Dating. The Initial Notes will be offered and sold by
the Company pursuant to a Purchase Agreement. The Initial Notes will be resold
by the Initial Purchasers only to (i) QIBs in reliance on Rule 144A under the
Securities Act ("Rule 144A") and (ii) Persons other than U.S. Persons (as
defined in Regulation S) in reliance on Regulation S under the Securities Act
("Regulation S"). Thereafter Initial Notes may be transferred to, among others,
QIBs and purchasers in reliance on Regulation S, subject to the restrictions on
transfer set forth herein. Initial Notes initially resold pursuant to Rule 144A
shall be issued initially in the form of one or more permanent global securities
in definitive, fully registered form (collectively, the "Rule 144A Global
Security") and Initial Notes initially resold pursuant to Regulation S shall be
issued initially in the form of one or more temporary global securities in
definitive, fully registered form (collectively, the "Temporary Regulation S
Global Security"), in each case without interest coupons and with the global
securities legend and restricted securities legend set forth in Exhibit 1
hereto. The Rule 144A Global Security and the Temporary Regulation S Global
Security shall be deposited on behalf of the purchasers of the Initial Notes
represented thereby with the Securities Custodian, and registered in the name of
the Depository or a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. Beneficial ownership
interests in the Temporary Regulation S Global Security will not be exchangeable
for interests in the Rule 144A Global Security, a permanent global security (the
"Permanent Regulation S Global Security"), or any other Security without a
legend containing restrictions on transfer of such Security prior to the
expiration of the Distribution Compliance Period and then only upon
certification in form reasonably satisfactory to the Trustee that beneficial
ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in a
transaction that did not require registration under the Securities Act. The Rule
144A Global Security, the Temporary Regulation S Global Security and the
Permanent Regulation S Global Security are collectively referred to herein as
"Global Securities". The aggregate principal amount of the Global Securities may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depository or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only
to a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the
3
Depository for such Global Security or Global Securities or the nominee of such
Depository and (b) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions or held by the Trustee as custodian
for the Depository.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository or by the Trustee as the custodian of the
Depository or under such Global Security, and the Company, the Trustee and any
agent of the Company or the Trustee shall be entitled to treat the Depository as
the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) Certificated Securities. Except as provided in Section 2.3 or
2.4 hereof, owners of beneficial interests in Global Securities shall not be
entitled to receive physical delivery of Definitive Securities.
2.2 Authentication. The Trustee shall authenticate and deliver: (1) on
the Closing Date, an aggregate principal amount of $200 million 11 1/2% Senior
Notes due 2009, (2) any Additional Notes for an original issue in an aggregate
principal amount specified in the written order of the Company pursuant to
Section 2.02 of the Indenture and (3) Exchange Notes or Private Exchange Notes
for issue only in a Registered Exchange Offer or a Private Exchange,
respectively, pursuant to a Registration Rights Agreement, for a like principal
amount of Initial Notes, in each case upon a written order of the Company signed
by two Officers. Such order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated and, in the case of any issuance of Additional Notes pursuant to
Section 2.13 of the Indenture, shall certify that such issuance is in compliance
with Section 4.03 of the Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar or a
co-Registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or its attorney duly
authorized in writing; and
(ii) if such Definitive Securities are required to bear a
restricted securities legend, they are being transferred or exchanged pursuant
to an effective registration statement under the Securities Act, pursuant to
Section 2.3(b) or pursuant to clause (A), (B) or (C) below, and are accompanied
by the following additional information and documents, as applicable:
4
(A) if such Definitive Securities are being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect; or
(B) if such Definitive Securities are being transferred
to the Company, a certification to that effect; or
(C) if such Definitive Securities are being transferred
(x) pursuant to an exemption from registration in accordance
with Rule 144A, Regulation S or Rule 144 under the Securities
Act; or (y) in reliance upon another exemption from the
requirements of the Securities Act: (i) a certification to that
effect (in the form set forth on the reverse of the Security)
and (ii) if the Company so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the legend set
forth in Section 2.3(e)(i) hereof.
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security may not be
exchanged for a beneficial interest in a Rule 144A Global Security or a
Permanent Regulation S Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the reverse
of the Security, that such Definitive Security is either (A)
being transferred to a QIB in accordance with Rule 144A or (B)
is being transferred after expiration of the Distribution
Compliance Period by a Person who initially purchased such
Security in reliance on Regulation S to a buyer who elects to
hold its interest in such Security in the form of a beneficial
interest in the Permanent Regulation S Global Security; and
(ii) written instructions directing the Trustee to make,
or to direct the Securities Custodian to make, an adjustment on
its books and records with respect to such Rule 144A Global
Security (in the case of a transfer pursuant to clause
(b)(i)(A)) or Permanent Regulation S Security (in the case of a
transfer pursuant to clause (b)(i)(B)) to reflect an increase in
the aggregate principal amount of the Securities represented by
the Rule 144A Global Security or Permanent Regulation S Global
Security, as applicable, such instructions to contain
information regarding the Depository account to be credited with
such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the
Securities Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities represented by the Rule 144A Global
Security or Permanent Regulation S Global Security, as applicable, to be
increased by the aggregate principal amount of the Definitive Security to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Rule 144A Global
Security or Permanent Regulation S Global Security, as applicable, equal to the
principal amount of the Definitive Security so canceled. If no Rule 144A Global
Securities or Permanent Regulation S Global Securities, as applicable, are then
outstanding, the Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers' Certificate, a new Rule
144A Global Security or Permanent Regulation S Global Security, as applicable,
in the appropriate principal amount.
5
(c) Transfer and Exchange of Global Securities. (i) The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with the Indenture (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Depository therefor. A transferor of a beneficial interest in a Global
Security shall deliver to the Registrar a written order given in accordance with
the Depository's procedures containing information regarding the participant
account of the Depository to be credited with a beneficial interest in the
Global Security. The Registrar shall, in accordance with such instructions,
instruct the Depository to credit to the account of the Person specified in such
instructions a beneficial interest in the Global Security and to debit the
account of the Person making the transfer the beneficial interest in the Global
Security being transferred.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another Global
Security, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Security to which such interest
is being transferred in an amount equal to the principal amount of the interest
to be so transferred, and the Registrar shall reflect on its books and records
the date and a corresponding decrease in the principal amount of the Global
Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4 hereof), a Global Security
may not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iv) In the event that a Global Security is exchanged for
Definitive Securities pursuant to Section 2.4 of this Appendix, prior to the
consummation of a Registered Exchange Offer or the effectiveness of a Shelf
Registration Statement with respect to such Securities, such Securities may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the certification
requirements set forth on the reverse of the Initial Notes intended to ensure
that such transfers comply with Rule 144A or Regulation S, as the case may be)
and such other procedures as may from time to time be adopted by the Company.
(d) Restrictions on Transfer of Temporary Regulation S Global
Securities. During the Distribution Compliance Period, beneficial ownership
interests in Temporary Regulation S Global Securities may only be sold, pledged
or transferred through Euroclear or Clearstream in accordance with the
Applicable Procedures and only (i) to the Company, (ii) so long as such Security
is eligible for resale pursuant to Rule 144A, to a Person whom the selling
holder reasonably believes is a QIB that purchases for its own account or for
the account of a QIB to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, (iii) in an offshore transaction in
accordance with Regulation S, (iv) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if applicable) under the
Securities Act or (v) pursuant to an effective registration statement under the
Securities Act, in each case in accordance with any applicable securities laws
of any state of the United States.
(e) Legend.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Security certificate evidencing the restricted Global
Securities (and all Securities issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the following
form:
6
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
Each Definitive Security will also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS THE COMPANY OR SUCH TRANSFER AGENT MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act, the Registrar
shall permit the transferee thereof to exchange such Transfer Restricted
Security for a certificated Security that does not bear the legend set
forth above and rescind any restriction on the transfer of such Transfer
Restricted Security, if the transferor thereof certifies in writing to
the Registrar that such sale or transfer was made in reliance on Rule
144 (such certification to be in the form set forth on the reverse of
the Security).
(iii) After a transfer of any Initial Notes or Private Exchange
Notes pursuant to and during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Notes or Private
Exchange Notes, as the case may be, all requirements pertaining to
legends on such Initial Notes or such Private Exchange Note will cease
to apply, the requirements requiring any such Initial Note or such
Private Exchange Note issued to certain Holders be issued in global form
will cease to apply, and a certificated Initial Note or Private Exchange
Note or an Initial Note or Private Exchange Note in global
7
form, in each case without restrictive transfer legends, will be
available to the transferee of the Holder of such Initial Notes or
Private Exchange Notes upon exchange of such transferring Holder's
certificated Initial Note or Private Exchange Note or appropriate
directions to transfer such Holder's interest in the Global Security, as
applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes, all requirements pertaining to such
Initial Notes that Initial Notes issued to certain Holders be issued in
global form will still apply with respect to Holders of such Initial
Notes that do not exchange their Initial Notes, and Exchange Notes in
certificated or global form, in each case without the restrictive
securities legend set forth in Exhibit 1 hereto will be available to
Holders that exchange such Initial Notes in such Registered Exchange
Offer.
(v) Upon the consummation of a Private Exchange with respect to
the Initial Notes, all requirements pertaining to such Initial Notes
that Initial Notes issued to certain Holders be issued in global form
will still apply with respect to Holders of such Initial Notes that do
not exchange their Initial Notes, and Private Exchange Notes in global
form with the global securities legend and the restricted securities
legend set forth in Exhibit 1 hereto will be available to Holders that
exchange such Initial Notes in such Private Exchange.
(f) Cancellation or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, purchased or canceled, such Global Security
shall be returned to the Depository for cancellation or retained and canceled by
the Trustee. At any time prior to such cancellation, if any beneficial interest
in a Global Security is exchanged for certificated Securities, redeemed,
purchased or canceled, the principal amount of Securities represented by such
Global Security shall be reduced and an adjustment shall be made on the books
and records of the Trustee (if it is then the Securities Custodian for such
Global Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(g) Obligations with Respect to Transfers and Exchanges of
Securities.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-Registrar's
request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar
governmental charge payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.09, 3.08 or 9.04 of the
Indenture).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Security
selected for redemption in whole or in part pursuant to Article 3 of the
Indenture, except the unredeemed portion of any Definitive Security
being redeemed in part, or (b) any Security for a period beginning 15
Business Days before the mailing of a notice of an offer to repurchase
or redeem Securities or 15 Business Days before an interest payment
date.
(iv) Prior to the due presentation for registration of transfer
of any Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar may deem and treat the Person in whose
8
name a Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and interest on such
Security and for all other purposes whatsoever, whether or not such
Security is overdue, and none of the Company, the Trustee, the Paying
Agent, the Registrar or any co-Registrar shall be affected by notice to
the contrary.
(v) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under the Indenture as the Securities
surrendered upon such transfer or exchange.
(h) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in
the Depository or other Person with respect to the accuracy of the
records of the Depository or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Securities or
with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount, under
or with respect to such Securities. All notices and communications to be
given to the Holders and all payments to be made to Holders under the
Securities shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee in the
case of a Global Security). The rights of beneficial owners in any
Global Security shall be exercised only through the Depository subject
to the applicable rules and procedures of the Depository. The Trustee
may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants
and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms
of the Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.4 Certificated Securities.
(a) A Global Security deposited with the Depository or with the
Trustee as Securities Custodian for the Depository pursuant to Section 2.1 shall
be transferred to the beneficial owners thereof in the form of Definitive
Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such
transfer complies with Section 2.3 hereof and (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a "clearing agency"
registered under the Exchange Act and, in either case, a successor Depository is
not appointed by the Company within 90 days of such notice, or (ii) an Event of
Default has occurred and is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it elects to cause the issuance
of Definitive Securities under the Indenture.
(b) Any Global Security that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depository
to the Trustee located at its principal Corporate Trust Office in the Borough of
Manhattan, The City of New York, to be so transferred, in whole or from time to
time in part,
9
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 principal amount and
any integral multiple thereof and registered in such names as the Depository
shall direct. Any Definitive Security delivered in exchange for an interest in
the Transfer Restricted Security shall, except as otherwise provided by Section
2.3(e) hereof, bear the restricted securities legend set forth in Exhibit 1
hereto.
(c) Subject to the provisions of Section 2.4(b) hereof, the
registered Holder of a Global Security shall be entitled to grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
(d) In the event of the occurrence of one of the events specified
in Section 2.4(a) hereof, the Company shall promptly make available to the
Trustee a reasonable supply of Definitive Securities in definitive, fully
registered form without interest coupons.
10
EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL NOTE]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
[Temporary Regulation S Global Security Legend]
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S
GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE RULE 144A GLOBAL
SECURITY OR THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF
THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(c)(3) OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON
CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH
BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO
PURCHASED SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT. DURING SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD,
BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY
MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS
OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME AND
ONLY (I) TO THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. HOLDERS OF
INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOTIFY ANY
PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN
APPLICABLE.
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS THE
COMPANY OR SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
[OID Legend]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $976.40 AND THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT IS $23.60, IN EACH CASE PER $1,000 PRINCIPAL AMOUNT
OF THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE ISSUE DATE OF
THIS SECURITY IS AUGUST 22, 2002. FOR PURPOSES OF SECTION 1272 OF THE CODE, THE
YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 12%.
2
CUSIP No. ___________
ISIN ___________
No. $
11 1/2 % Senior Note due 2009
URS Corporation, a Delaware corporation, promises to pay to [Cede
& Co.], or registered assigns, the principal sum of _______ Dollars on September
15, 2009.
Interest Payment Dates: March 15 and September 15, commencing
March 15, 2003.
Record Dates: March 1 and September 1.
Additional provisions of this Note are set forth on the reverse
side of this Note.
Dated:
URS CORPORATION,
by
---------------------------------------
Name:
Title:
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK, N.A.
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
by
------------------------------------
Authorized Signatory
3
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
11 1/2% Senior Note due 2009
1. Interest
URS Corporation, a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.25% per annum
(increasing by an additional 0.25% per annum after each subsequent 90-day period
that occurs after the date on which such Registration Default occurs up to a
maximum additional interest rate of 1.50% per annum) from and including the date
on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. The Company will pay interest
semiannually in arrears on March 15 and September 15 of each year, commencing
March 15, 2003. Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from [insert date
of issuance]. Interest will be computed on the basis of a 360-day year comprised
of twelve 30-day months.
The Company shall pay interest on overdue principal and premium,
if any, and interest on overdue installments of interest, to the extent lawful,
at the same rate per annum payable on the principal of this Note.
2. Method of Payment
The Company will pay interest on the Notes (except overdue
interest) to the Persons who are registered Holders of Notes at the close of
business on March 1 or September 1 next preceding the Interest Payment Date even
if Notes are canceled after the Regular Record Date and on or before the
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of the Notes represented by a Global
Security (including principal, premium, if any, and interest) will be made by
wire transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
certificated Note (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on a certificated Security will be made by wire transfer
to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such account no
later than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, U.S. Bank, N.A. (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-Registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-Registrar.
4
4. Indenture
The Company issued the Notes under an Indenture dated as of
August 22, 2002 ("Indenture"), among the Company, the Subsidiary Guarantors and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all such terms, and
Noteholders are referred to the Indenture and the TIA for a statement of those
terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control.
The Notes are general unsecured obligations of the Company. The
Company shall be entitled, subject to its compliance with Section 4.03 of the
Indenture, to issue Additional Notes pursuant to Section 2.13 of the Indenture.
The Initial Notes issued on the Closing Date, any Additional Notes and all
Exchange Notes or Private Exchange Notes issued in exchange therefor will be
treated as a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company and its Subsidiaries to
Incur additional Indebtedness; pay dividends or distributions on, or redeem or
repurchase Capital Stock; make Investments; grant Liens; enter into
Sale/Leaseback Transactions; engage in transactions with Affiliates; transfer or
sell assets; guarantee Indebtedness; restrict dividends or other payments of
subsidiaries; and consolidate, merge or transfer all or substantially all of its
assets and the assets of its Subsidiaries. These covenants are subject to
important exceptions and qualifications set forth in the Indenture.
5. Optional Redemption
Except as set forth below, the Company shall not be entitled to
redeem the Notes at its option prior to September 15, 2006.
The Notes are redeemable, at the Company's option, in whole or in
part, at any time or from time to time, on or after September 15, 2006 and prior
to maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address, as it appears in the Security
Register, at the following Redemption Prices (expressed in percentages of
principal amount, plus accrued and unpaid interest to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
that is prior to the Redemption Date to receive interest due on an Interest
Payment Date), if redeemed during the 12-month period commencing September 15 of
the years set forth below:
Year Redemption Price
- ---- ----------------
2006 .............................. 105.750%
2007 .............................. 102.875%
2008 .............................. 100.000%
At any time on or prior to September 15, 2005, the Company may
redeem up to 35% of the aggregate principal amount of the Notes with the Net
Cash Proceeds of one or more sales of Capital Stock (other than Disqualified
Stock), at any time as a whole or from time to time in part, at a Redemption
Price (expressed as a percentage of principal amount of 111.50%, plus accrued
and unpaid interest to the Redemption Date (subject to the rights of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date); provided that (i) at least
65% of the
5
aggregate principal amount of Notes originally issued on the Closing Date
remains outstanding after each such redemption and (ii) notice of such
redemption is mailed within 60 days after such sale of Capital Stock.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at its registered address. Notes in denominations larger than $1,000 principal
amount may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the Redemption Price of and accrued interest on all Notes (or
portions thereof) to be redeemed on the Redemption Date is deposited with the
Paying Agent on or before the Redemption Date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, each Holder of Notes shall have the
right to cause the Company to purchase all or any part of the Notes of such
Holder at a purchase price equal to 101% of the principal amount of the Notes to
be purchased plus accrued and unpaid interest, if any, to the Payment Date as
provided in, and subject to the terms of, the Indenture.
Under certain circumstances as set forth in the Indenture, the
Company will be required to offer to purchase Securities with the Net Cash
Proceeds from Asset Sales.
8. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the Notes is unconditionally guaranteed on a joint and several
senior basis by each of the Subsidiary Guarantors.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations
of $1,000 principal amount and integral multiples of $1,000. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer or exchange of any
Notes selected for redemption (except, in the case of a Security to be redeemed
in part, the portion of the Note not to be redeemed) or any Notes for a period
of 15 days before a selection of Notes to be redeemed or 15 days before an
Interest Payment Date.
10. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of
it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
6
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Notes to redemption
or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of not less than 66 2/3%
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of not less than 66 2/3% in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency and make any change that does not
materially and adversely affect the rights of any Holder.
14. Defaults and Remedies
Any of the following events constitutes an "Event of Default"
under the Indenture:
(a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30
days;
(c) default in the performance or breach of the provisions of the
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of the Company or the failure to make or
consummate an Offer to Purchase in accordance with Section 4.10 and
Section 4.11 of the Indenture;
(d) the Company or any Subsidiary Guarantor defaults in the
performance of or breaches any other covenant or agreement of the
Company in the Indenture or under the Notes (other than a default
specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 60 consecutive days after written notice by
the Trustee or the Holders of 25% or more in aggregate principal amount
of the Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company, any Significant Subsidiary or any group of
Subsidiary Guarantors that taken together would constitute a Significant
Subsidiary, having an outstanding principal amount of $20 million or
more in the aggregate for all such issues of all such Persons, whether
such Indebtedness now exists or shall hereafter be created, (i) an event
of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has
not been rescinded or annulled within 30 days of such acceleration or
(ii) the failure to make a principal payment at the final (but not any
interim) fixed maturity and such defaulted payment shall not have been
made, waived or extended within 30 days of such payment default;
7
(f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $20 million in the aggregate for all
such final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, any Significant Subsidiary or any group of
Subsidiary Guarantors that taken together would constitute a Significant
Subsidiary, and shall not be paid or discharged, and there shall be any
period of 60 consecutive days following entry of the final judgment or
order that causes the aggregate amount for all such final judgments or
orders outstanding and not paid or discharged against all such Persons
to exceed $20 million during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect;
(g) a court having jurisdiction in the premises enters a decree
or order for (A) relief in respect of the Company, any Significant
Subsidiary or any group of Subsidiary Guarantors that taken together
would constitute a Significant Subsidiary, in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant
Subsidiary, or for all or substantially all of the property and assets
of the Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant
Subsidiary, or (C) the winding up or liquidation of the affairs of the
Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant
Subsidiary, and, in each case, such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
(h) the Company, any Significant Subsidiary or any group of
Subsidiary Guarantors that taken together would constitute a Significant
Subsidiary, (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, any Significant
Subsidiary or any group of Subsidiary Guarantors that taken together
would constitute a Significant Subsidiary, or for all or substantially
all of the property and assets of the Company, or any Significant
Subsidiary or any group of Subsidiary Guarantors that taken together
would constitute a Significant Subsidiary, or (C) effects any general
assignment for the benefit of creditors; or
(i) except as permitted by the Indenture, any Subsidiary
Guarantor repudiates its obligations under its Note Guarantee or any
Note Guarantee is determined to be unenforceable or invalid or shall for
any reason cease to be in full force and effect.
If an Event of Default, as defined in the Indenture, occurs and
is continuing, the Trustee may, and at the direction of the Holders of at least
25% in aggregate principal amount of the Notes then outstanding shall, declare
all the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Company or a Subsidiary Guarantor occurs and is continuing, the
Notes automatically become due and payable. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of not less than 66 2/3% in
aggregate principal amount of the Notes then outstanding may direct the Trustee
in its exercise of any trust or power.
8
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not the Trustee.
16. No Recourse Against Others
No incorporator or any past, present or future partner,
stockholder, other equityholder, officer, director, employee or controlling
person, as such, of the Company, any Subsidiary Guarantor, or of any successor
Person thereof shall have any liability for any obligations of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Noteholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
and corresponding ISINs to be printed on the Notes and has directed the Trustee
to use CUSIP numbers and corresponding ISINs in notices of redemption as a
convenience to Noteholders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Note, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.
9
21. Governing Law
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Noteholder upon written request
and without charge to the Noteholder a copy of the Indenture which has in it the
text of this Security in larger type. Requests may be made to:
URS Corporation
100 California Street, Suite 500
San Francisco, CA 94111-4529
Attention: General Counsel
10
- --------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
---------------- ------------------------------------------
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933) that purchases
for its own account or for the account of a qualified institutional buyer to
whom notice is given that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A under the Securities
Act of 1933; or
(4) [ ] outside the United States in an offshore transaction in
compliance with Rule 904 under the Securities Act of 1933; or
(5) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933.
If such transfer is being made pursuant to an offshore
transaction in accordance with Rule 904 under the Securities Act, the
undersigned further certifies that:
11
(i) the offer of the Notes was not made to a person in the
United States;
(ii) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(iii) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903 or Rule 904 of
Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act;
(v) we have advised the transferee of the transfer restrictions
applicable to the Notes; and
(vi) if the circumstances set forth in Rule 904(B) under the
Securities Act, are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Notes may be offered and sold during the
distribution compliance period specified in Rule 903 of Regulation S;
pursuant to registration of the Notes under the Securities Act; or
pursuant to an available exemption from the registration requirements
under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any person
other than the registered holder thereof; provided, however, that if box
(4) or (5) is checked, the Trustee shall be entitled to require, prior
to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such act.
------------------------------------
Signature
Signature Guarantee:
- ---------------------------------- ------------------------------------
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
- --------------------------------------------------------------------------------
12
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
------------------------ -------------------------------------
NOTICE: To be executed by
an executive officer
13
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
amount of this amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase Custodian
14
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.11 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Note purchased by
the Company pursuant to Section 4.10 or 4.11 of the Indenture, state the amount
in principal amount: $
Date: Your Signature:
----------------- ----------------------------------
(Sign exactly as your name
appears on the other side
of this Note.)
Signature Guarantee:
----------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
15
EXHIBIT A
[FORM OF FACE OF EXCHANGE NOTE
OR PRIVATE EXCHANGE NOTE*/**/]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $976.40 AND THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT IS $23.60, IN EACH CASE PER $1,000 PRINCIPAL AMOUNT
OF THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE ISSUE DATE OF
THIS SECURITY IS AUGUST 22, 2002. FOR PURPOSES OF SECTION 1272 OF THE CODE, THE
YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 12%.
- ----------------
*/ If the Note is to be issued in global form add the global securities legend
from Exhibit 1 to Appendix A and the attachment from such Exhibit 1 captioned
"TO BE ATTACHED TO GLOBAL SECURITIES - SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL SECURITY".
**/If the Note is a Private Exchange Note issued in a Private Exchange to an
Initial Purchaser holding an unsold portion of its initial allotment, add the
restricted securities legend from Exhibit 1 to Appendix A and replace the
Assignment Form included in this Exhibit A with the Assignment Form included in
such Exhibit 1.
CUSIP No. _________
ISIN _________
No. $
11 1/2% Senior Note due 2009
URS Corporation, a Delaware corporation, promises to pay to
, or registered assigns, the principal sum of Dollars on
September 15, 2009.
Interest Payment Dates: March 15 and September 15, commencing
March 15, 2003.
Record Dates: March 1 and September 1.
Additional provisions of this Note are set forth on the reverse
side of this Note.
Dated:
URS CORPORATION
by
---------------------------------------
Name:
Title:
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK, N.A.
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
by
---------------------------------------
Authorized Signatory
2
[FORM OF REVERSE SIDE OF EXCHANGE NOTE
OR PRIVATE EXCHANGE NOTE]
11 1/2% Senior Note due 2009
1. Interest
URS Corporation, a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Note at the rate per annum shown above [; provided, however, that if a
Registration Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.25% per annum
(increasing by an additional 0.25% per annum after each subsequent 90-day period
that occurs after the date on which such Registration Default occurs up to a
maximum additional interest rate of 1.50% per annum) from and including the date
on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured.***] The Company will pay
interest semiannually in arrears on March 15 and September 15 of each year,
commencing March 15, 2003. Interest on the Securities will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from [insert last interest payment date on which interest was paid on the
Initial Notes or, if no interest has been paid on the Initial Notes, insert the
date of original issue of the Initial Notes]. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and premium,
if any, and interest on overdue installments of interest, to the extent lawful,
at the same rate per annum payable on the principal of this Note.
2. Method of Payment
The Company will pay interest on the Notes (except overdue
interest) to the Persons who are registered Holders of Notes at the close of
business on the March 1 or September 1 next preceding the Interest Payment Date
even if Notes are canceled after the Regular Record Date and on or before the
Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of the Notes represented by a Global
Security (including principal, premium, if any,
- --------------------
***/ Insert if at the date of issuance of the Exchange Note or Private Exchange
Note (as the case may be) any Registration Default has occurred with respect to
the related Initial Securities during the interest period in which such date of
issuance occurs.
3
and interest) will be made by wire transfer of immediately available funds to
the accounts specified by The Depository Trust Company. The Company will make
all payments in respect of a certificated Security (including principal, premium
and interest) by mailing a check to the registered address of each Holder
thereof; provided, however, that payments on a certificated Security will be
made by wire transfer to a U.S. dollar account maintained by the payee with a
bank in the United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar
Initially, U.S. Bank, N.A. (the "Trustee"), will act as Paying
Agent and Registrar. The Company may appoint and change any Paying Agent,
Registrar or co-registrar without notice. The Company or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-Registrar.
4. Indenture
The Company issued the Notes under an Indenture dated as of
August 22, 2002 ("Indenture"), among the Company, the Subsidiary Guarantors and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all such terms, and
Noteholders are referred to the Indenture and the TIA for a statement of those
terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control.
The Notes are general unsecured obligations of the Company. The
Company shall be entitled, subject to its compliance with Section 4.03 of the
Indenture, to issue Additional Notes pursuant to Section 2.13 of the Indenture.
The Initial Notes issued on the Closing Date, any Additional Notes and all
Exchange Notes or Private Exchange Notes issued in exchange therefor will be
treated as a single class for all purposes under the Indenture. The Indenture
contains covenants that limit the ability of the Company and its Subsidiaries to
Incur Additional Indebtedness; pay dividends or distributions on, or redeem or
repurchase Capital Stock; make Investments; grant Liens; enter into
Sale/Leaseback Transactions; engage in transactions with Affiliates; transfer or
sell assets; guarantee Indebtedness; restrict dividends or other payments of
Subsidiaries; and consolidate, merge or transfer all or substantially all of its
assets and the assets of its Subsidiaries. These covenants are subject to
important exceptions and qualifications set forth in the Indenture.
5. Optional Redemption
Except as set forth below, the Company shall not be entitled to
redeem the Notes at its option prior to September 15, 2006.
The Notes are redeemable, at the Company's option, in whole or in
part, at any time or from time to time, on or after September 15, 2006 and prior
to maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last address, as it appears in the Security
Register, at the following Redemption Prices (expressed in percentages of
principal amount, plus accrued and unpaid interest to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
that is prior
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to the Redemption Date to receive interest due on an Interest Payment Date), if
redeemed during the 12-month period commencing September 15 of the years set
forth below:
Year Redemption Price
- ---- ----------------
2006...................................... 105.750%
2007...................................... 102.875%
2008 and thereafter....................... 100.000%
At any time on or prior to September 15, 2005, the Company may
redeem up to 35% of the aggregate principal amount of the Notes with the Net
Cash Proceeds of one or more sales of Capital Stock (other than Disqualified
Stock), at any time as a whole or from time to time in part, at a Redemption
Price (expressed as a percentage of principal amount of 111.50%, plus accrued
and unpaid interest to the Redemption Date (subject to the rights of Holders of
record on the relevant Regular Record Date that is prior to the Redemption Date
to receive interest due on an Interest Payment Date); provided that (i) at least
65% of the aggregate principal amount of Notes originally issued on the Closing
Date remains outstanding after each such redemption and (ii) notice of such
redemption is mailed within 60 days after such sale of Capital Stock.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at its registered address. Notes in denominations larger than $1,000 principal
amount may be redeemed in part but only in whole multiples of $1,000. If money
sufficient to pay the Redemption Price of and accrued interest on all Notes (or
portions thereof) to be redeemed on the Redemption Date is deposited with the
Paying Agent on or before the Redemption Date and certain other conditions are
satisfied, on and after such date interest ceases to accrue on such Notes (or
such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, each Holder of Notes shall have the
right to cause the Company to purchase all or any part of the Notes of such
Holder at a purchase price equal to 101% of the principal amount of the Notes to
be purchased plus accrued and unpaid interest, if any, to the Payment Date as
provided in, and subject to the terms of, the Indenture.
Under certain circumstances as set forth in the Indenture, the
Company will be required to offer to purchase Securities with the Net Cash
Proceeds from Asset Sales.
8. Guarantee
The payment by the Company of the principal of, and premium and
interest on, the Securities is unconditionally guaranteed on a joint and several
senior basis by each of the Subsidiary Guarantors.
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9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations
of $1,000 principal amount and integral multiples of $1,000. A Holder may
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange of
any Notes selected for redemption (except, in the case of a Note to be redeemed
in part, the portion of the Note not to be redeemed) or any Notes for a period
of 15 days before a selection of Notes to be redeemed or 15 days before an
Interest Payment Date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request. After any such payment, Holders entitled to the
money must look only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Notes and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Notes to redemption
or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of not less than 66 2/3%
in aggregate principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of not less than 66 2/3% in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency and make any change that does not
materially and adversely affect the rights of any Holder.
14. Defaults and Remedies
Any of the following events constitutes an "Event of Default"
under the Indenture:
(a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30
days;
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(c) default in the performance or breach of the provisions of the
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of the Company or the failure to make or
consummate an Offer to Purchase in accordance with Section 4.10 and
Section 4.11 of the Indenture;
(d) the Company or any Subsidiary Guarantor defaults in the
performance of or breaches any other covenant or agreement of the
Company in the Indenture or under the Notes (other than a default
specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 60 consecutive days after written notice by
the Trustee or the Holders of 25% or more in aggregate principal amount
of the Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company, any Significant Subsidiary or any group of
Subsidiary Guarantors that taken together would constitute a Significant
Subsidiary, having an outstanding principal amount of $20 million or
more in the aggregate for all such issues of all such Persons, whether
such Indebtedness now exists or shall hereafter be created, (i) an event
of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has
not been rescinded or annulled within 30 days of such acceleration or
(ii) the failure to make a principal payment at the final (but not any
interim) fixed maturity and such defaulted payment shall not have been
made, waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $20 million in the aggregate for all
such final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, any Significant Subsidiary or any group of
Subsidiary Guarantors that taken together would constitute a Significant
Subsidiary, and shall not be paid or discharged, and there shall be any
period of 60 consecutive days following entry of the final judgment or
order that causes the aggregate amount for all such final judgments or
orders outstanding and not paid or discharged against all such Persons
to exceed $20 million during which a stay of enforcement of such final
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect;
(g) a court having jurisdiction in the premises enters a decree
or order for (A) relief in respect of the Company, any Significant
Subsidiary or any group of Subsidiary Guarantors that taken together
would constitute a Significant Subsidiary, in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant
Subsidiary, or for all or substantially all of the property and assets
of the Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant
Subsidiary, or (C) the winding up or liquidation of the affairs of the
Company, any Significant Subsidiary or any group of Subsidiary
Guarantors that taken together would constitute a Significant
Subsidiary, and, in each case, such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days;
(h) the Company, any Significant Subsidiary or any group of
Subsidiary Guarantors that taken together would constitute a Significant
Subsidiary, (A) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of
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or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company, any
Significant Subsidiary or any group of Subsidiary Guarantors that taken
together would constitute a Significant Subsidiary, or for all or
substantially all of the property and assets of the Company, or any
Significant Subsidiary or any group of Subsidiary Guarantors that taken
together would constitute a Significant Subsidiary, or (C) effects any
general assignment for the benefit of creditors; or
(i) except as permitted by the Indenture, any Subsidiary
Guarantor repudiates its obligations under its Note Guarantee or any
Note Guarantee is determined to be unenforceable or invalid or shall for
any reason cease to be in full force and effect.
If an Event of Default, as defined in the Indenture, occurs and
is continuing, the Trustee may, and at the direction of the Holders of at least
25% in aggregate principal amount of the Notes then outstanding shall, declare
all the Notes to be due and payable. If a bankruptcy or insolvency default with
respect to the Company or a Subsidiary Guarantor occurs and is continuing, the
Notes automatically become due and payable. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of not less than 66 2/3% in
aggregate principal amount of the Notes then outstanding may direct the Trustee
in its exercise of any trust or power.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not the Trustee.
16. No Recourse Against Others
No incorporator or any past, present or future partner,
stockholder, other equityholder, officer, director, employee or controlling
person, as such, of the Company or of any successor Person shall have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
17. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a Noteholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
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19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
and corresponding ISINs to be printed on the Notes and has directed the Trustee
to use CUSIP numbers and corresponding ISINs in notices of redemption as a
convenience to Noteholders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.
9
20. Holders' Compliance with Registration Rights Agreement.
Each Holder of a Note, by acceptance hereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including the
obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.****/
22. Governing Law.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Noteholder upon written request
and without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to:
URS Corporation
100 California Street, Suite 500
San Francisco, CA 94111-4529
Attention: General Counsel
- -------------------------
****/ Delete if this Note is an Exchange Note.
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- --------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
---------------- ---------------------------------------
- ---------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.10 or 4.11 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.10 or 4.11 of the Indenture, state the
amount in principal amount: $
Date: Your Signature:
--------------- ------------------------------------
(Sign exactly as your name appears
on the other side of this Security.)
Signature Guarantee:
----------------------------------------
(Signature must be guaranteed)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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