WAVETEK CORPORATION
AND
WAVETEK U.S. INC.
AS GUARANTOR
$85,000,000
10 1/8% SENIOR SUBORDINATED NOTES DUE JUNE 15, 2007
_____________
INDENTURE
DATED AS OF JUNE 11, 1997
_____________
THE BANK OF NEW YORK
AS TRUSTEE
TABLE OF CONTENTS
ARTICLE 1 PAGE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Other Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1.03 Incorporation by Reference of Trust Indenture Act. . . . . . . . . . 17
Section 1.04 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . 20
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . 21
Section 2.04 Paying Agent to Hold Money in Trust. . . . . . . . . . . . . . . . . 21
Section 2.05 Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.06 Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.07 Replacement Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.08 Outstanding Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.09 Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.10 Temporary Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3.02 Selection of Notes to Be Redeemed. . . . . . . . . . . . . . . . . . 34
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . 36
Section 3.05 Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . 36
Section 3.06 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.07 Optional Redemption. . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.08 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.02 Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . 38
Section 4.03 Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . 38
Section 4.04 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.05 Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . 39
Section 4.06 Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.07 Asset Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.08 Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock . . . . . 43
Section 4.10 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 4.11 Dividend and Other Payment Restrictions Affecting Subsidiaries . . . 46
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PAGE
Section 4.12 Limitation on Layering Debt. . . . . . . . . . . . . . . . . . . . . 47
Section 4.13 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . 47
Section 4.14 Foreign Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.15 Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 4.16 Additional Subsidiary Guarantees . . . . . . . . . . . . . . . . . . 49
ARTICLE 5
SUCCESSORS
Section 5.01 Limitations on Merger, Consolidation or Sale of
Substantially All Assets . . . . . . . . . . . . . . . . . . . . . . 49
Section 5.02 Successor Corporation Substituted. . . . . . . . . . . . . . . . . . 50
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.04 Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.05 Control by Majority. . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.06 Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.07 Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . 54
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . 54
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . 54
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.11 Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 7
TRUSTEE . . . . . . . . . . . . . . . . . . 56
Section 7.01 Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.02 Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . 58
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 7.06 Reports by Trustee to Holders. . . . . . . . . . . . . . . . . . . . 59
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . 60
Section 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.09 Successor Trustee by Merger, etc.. . . . . . . . . . . . . . . . . . 62
Section 7.10 Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . 62
Section 7.11 Preferential Collection of Claims Against the Company. . . . . . . . 62
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . 62
Section 8.02. Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . 63
Section 8.03 Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.04 Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . 64
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . 66
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PAGE
Section 8.06 Repayment to the Company . . . . . . . . . . . . . . . . . . . . . . 67
Section 8.07 Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . 68
Section 9.02 With Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . 68
Section 9.03 Compliance with Trust Indenture Act. . . . . . . . . . . . . . . . . 70
Section 9.04 Revocation and Effect of Consents. . . . . . . . . . . . . . . . . . 70
Section 9.05 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . 71
Section 9.06 Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . . . . 71
ARTICLE 10
SUBSIDIARY GUARANTEES
Section 10.01 Subsidiary Guarantees. . . . . . . . . . . . . . . . . . . . . . . . 71
Section 10.02 Execution and Delivery of Subsidiary Guarantees. . . . . . . . . . . 73
Section 10.03 Subsidiary Guarantors May Consolidate, etc., on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 10.04 Releases Following Sale of Assets. . . . . . . . . . . . . . . . . . 75
Section 10.05 Limitation of Subsidiary Guarantor's Liability . . . . . . . . . . . 75
Section 10.06 Application of Certain Terms and Provisions to the
Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . . . . 76
Section 10.07 Release of Subsidiary Guarantees . . . . . . . . . . . . . . . . . . 76
Section 10.08 Subordination of Subsidiary Guarantees . . . . . . . . . . . . . . . 76
ARTICLE 11
SUBORDINATION
Section 11.01 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . 77
Section 11.02 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . 77
Section 11.03 Default on Designated Senior Debt. . . . . . . . . . . . . . . . . . 78
Section 11.04 Acceleration of Notes. . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.05 When Distribution Must Be Paid Over. . . . . . . . . . . . . . . . . 79
Section 11.06 Notice by Company. . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 11.07 Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 11.08 Relative Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 11.09 Subordination May Not Be Impaired by Company . . . . . . . . . . . . 80
Section 11.10 Distribution or Notice to Representative . . . . . . . . . . . . . . 81
Section 11.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . 82
Section 11.12 Authorization to Effect Subordination. . . . . . . . . . . . . . . . 82
Section 11.13 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . 83
Section 12.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 12.03 Communication by Holders with Other Holders. . . . . . . . . . . . . 84
Section 12.04 Certificate and Opinion as to Conditions Precedent . . . . . . . . . 84
Section 12.05 Statements Required in Certificate or Opinion. . . . . . . . . . . . 84
Section 12.06 Rules by Trustee and Agents. . . . . . . . . . . . . . . . . . . . . 85
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PAGE
Section 12.07 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 12.08 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . 85
Section 12.09 Duplicate Originals. . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 12.10 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 12.11 No Adverse Interpretation of Other Agreements. . . . . . . . . . . . 86
Section 12.12 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 12.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 12.14 Counterpart Originals. . . . . . . . . . . . . . . . . . . . . . . . 86
Section 12.15 Table of Contents, Headings, etc.. . . . . . . . . . . . . . . . . . 86
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
EXHIBITS
Exhibit A-1 Form of Note
Exhibit A-2 Form of Regulation S Temporary Note
Exhibit B-1 Form of Certificate for Exchange or Registration of
Transfer of Rule 144A Global Note to Regulation S Global
Note
Exhibit B-2 Form of Certificate for Exchange or Registration of
Transfer From Regulation S Global Note to Rule 144A Global
Note
Exhibit B-3 Form of Certificate for Exchange or Registration of
Transfer of Certificated Notes
Exhibit B-4 Form of Certificate for Exchange or Registration of
Transfer From Rule 144A Global Note or Regulation S
Permanent Global Note to Certificated Note
Exhibit B-5 Form of Certificate for Exchange or Registration of
Transfer From Certificated Note to Rule 144A Global Note or
Regulation S Permanent Global Note
iv
INDENTURE dated as of June 11, 1997, between Wavetek Corporation, a
Delaware corporation (the "Company"), Wavetek U.S. Inc., a Delaware
corporation, as guarantor, and The Bank of New York, a New York corporation,
as trustee ("Trustee").
Each party agrees as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 10 1/8% Series A Senior
Subordinated Notes due 2007 (the "Series A Notes") and the 10 1/8% Series B
Senior Subordinated Notes due 2007 (the "Series B Notes" and, together with
the Series A Notes, the "Notes") of the Company:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or
in contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, and in the case of the Company and its
Subsidiaries, shall include Yokogawa until such time as Yokogawa has
beneficial ownership of less than five percent of the Company's Capital
Stock. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; PROVIDED that
beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"AGENT MEMBERS" means any member of, or participant in, the Depositary.
"APPLICABLE PROCEDURES" means, with respect to any transfer or exchange
of beneficial interests in a Global Note, the rules and procedures of the
Depositary that are applicable to such transfer or exchange.
2
"ASSET SALE" means (i) the sale, lease, conveyance or other disposition
of any assets (including, without limitation, by way of a sale and leaseback)
other than sales of Cash Equivalents and inventory in the ordinary course of
business (PROVIDED that the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company and its Subsidiaries
taken as a whole will be governed by the provisions of Section 4.06 hereof
and/or the provisions of Section 5.01 hereof and not by the provisions of
Section 4.07), and (ii) the issue or sale by the Company or any of its
Subsidiaries of Equity Interests of any of the Company's Subsidiaries, in the
case of either clause (i) or (ii), whether in a single transaction or a
series of related transactions (a) that have a fair market value in excess of
$2,000,000 or (b) for net proceeds in excess of $2,000,000. Notwithstanding
the foregoing: (i) a transfer of assets by the Company to a Wholly Owned
Subsidiary or by a Wholly Owned Subsidiary to the Company or to another
Wholly Owned Subsidiary, (ii) an issuance of Equity Interests by a Wholly
Owned Subsidiary to the Company or to another Wholly Owned Subsidiary, and
(iii) a Restricted Payment that is permitted by Section 4.08 hereof will not
be deemed to be Asset Sales.
"AUTHENTICATION ORDER" means an Officers' Certificate ordering the
Trustee to authenticate Notes.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors of the Company.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination thereof
is to be made, (i) the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP, or (ii) so long as the Master Lease, dated as of
October 21, 1994, as amended, with respect to property in Indianapolis,
Indiana, is not accounted for as a capital lease, the amount of the liability
with respect thereto recorded on the Company's balance sheet.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of corporate stock, (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited) and
(iv) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets
of, the issuing Person.
3
"CASH EQUIVALENTS" means (i) United States dollars or foreign currency that
is readily exchangeable into United States dollars, (ii) securities issued or
directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than 12
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of 12 months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding 12 months
and overnight bank deposits, in each case with any domestic commercial bank
having capital and surplus in excess of $500,000,000 and a ▇▇▇▇▇ Bank Watch
Rating of "B" or better, (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clauses
(ii) and (iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above, and (v) commercial paper
having the highest rating obtainable from ▇▇▇▇▇'▇ Investors Service, Inc. or
Standard & Poor's Corporation and in each case maturing within 12 months
after the date of acquisition.
"CERTIFICATED NOTES" means Notes that are in the form of the Notes
attached hereto as Exhibit A-1, that do not include the information called
for by footnotes 1 and 2 thereof.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all
or substantially all of the assets of the Company and its Subsidiaries taken
as a whole to any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act) other than the Principals or their Related Parties (as defined
below), (ii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has
the right to acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition), directly or
indirectly, of more than 50% of the Voting Stock of the Company (measured by
voting power rather than number of shares), (iii) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors, or (iv) the Company consolidates with, or merges with
or into, any Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any Person,
or any Person consolidates with, or merges with or into, the Company, in any
such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where the majority of the
members of the Board of Directors of such Person are Continuing Directors.
4
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i)
an amount equal to any extraordinary loss or provision, including any
provision for restructuring operations, plus any net loss realized in
connection with an Asset Sale (to the extent such losses were deducted in
computing such Consolidated Net Income), plus (ii) provision for taxes based
on income or profits of such Person and its Subsidiaries for such period, to
the extent that such provision for taxes was included in computing such
Consolidated Net Income, plus (iii) consolidated interest expense of such
Person and its Subsidiaries for such period, whether paid or accrued and
whether or not capitalized (including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations
commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net payments (if any)
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense to
the extent that it represents an accrual of or reserve for cash expenses in
any future period or amortization of a prepaid cash expense that was paid in
a prior period) of such Person and its Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income, minus (v) non-cash items
increasing such Consolidated Net Income for such period, in each case, on a
consolidated basis and determined in accordance with GAAP; PROVIDED that
Consolidated Net Income shall exclude the impact of foreign currency
translations. Notwithstanding the foregoing, the provision for taxes on the
income or profits of, and the depreciation and amortization and other
non-cash charges of, a Subsidiary of the referent Person shall be added to
Consolidated Net Income to compute Consolidated Cash Flow only to the extent
that a corresponding amount would be permitted at the date of determination
to be dividended to the Company by such Subsidiary either (i) without prior
governmental approval or (ii) with governmental approval that has been
obtained or that could readily and reasonably be obtained, and without direct
or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its stockholders.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP
and excluding any one-time charge or expense incurred in order to consummate
the Recapitalization Transactions; PROVIDED that (i) the Net Income (but not
loss) of any Person that is not a Subsidiary or that is accounted for by the
equity method of accounting shall be included
5
only to the extent of the amount of dividends or distributions paid in cash
to the referent Person or a Wholly Owned Subsidiary thereof that is a
Subsidiary Guarantor, (ii) the Net Income of any Subsidiary shall be excluded
to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (unless such
governmental approval could be readily and reasonably obtained) or, directly
or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders, (iii) the Net Income of
any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded and (iv) the
cumulative effect of a change in accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date plus (ii) the
respective amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock (other than Disqualified Stock)
that by its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect of the
year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (x) all
write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made within 12
months after the acquisition of such business) subsequent to the Issue Date
in the book value of any asset owned by such Person or a consolidated
Subsidiary of such Person, (y) all investments as of such date in
unconsolidated Subsidiaries and in Persons that are not Subsidiaries (except,
in each case, Permitted Investments), and (z) all unamortized debt discount
and expense and unamortized deferred charges, excluding goodwill and other
purchased intangibles, as of such date, all of the foregoing determined in
accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of the Company who (i) was a member of such Board
of Directors on the Issue Date or (ii) was nominated for election or elected
to such Board of Directors pursuant to the Stockholders Agreement or with the
approval of a majority of the Continuing Directors who were members of such
Board at the time of such nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 12.02 or such other address as the Trustee may
give notice to the Company.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
6
"DEPOSITARY" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such Depositary pursuant to the applicable provision of
this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"DESIGNATED SENIOR DEBT" means (i) any Indebtedness outstanding under the
New Credit Agreement and (ii) any other Senior Debt permitted under this
Indenture the principal amount of which is $25,000,000 or more and that has
been designated by the Company as "Designated Senior Debt."
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the Holder thereof, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes mature; PROVIDED, that
Capital Stock issued to employees pursuant to agreements providing that the
employee may require the Company to repurchase such Capital Stock in certain
circumstances shall not be deemed to be Disqualified Stock if such agreements
provide that the repurchase rights are subject to the limitations on such
repurchases set forth in Section 4.08.
"DOLLARS" and "$" means lawful money or currency of the United States of
America.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time.
"EXCHANGE OFFER" means the offer that may be made by the Company pursuant
to the Registration Rights Agreement to exchange Series B Notes for Series A
Notes.
"EXISTING INDEBTEDNESS" means up to $7,000,000 in aggregate principal
amount of Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the New Credit Agreement) in existence on the Issue Date
after the Recapitalization Transactions, until such amounts are repaid.
7
"FIXED CHARGES" means, with respect to any Person for any period, the
sum, without duplication, of (i) the consolidated interest expense of such
Person and its Subsidiaries for such period, whether paid or accrued
(including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated interest expense of such Person and
its Subsidiaries that was capitalized during such period, and (iii) any
interest expense on Indebtedness of another Person that is Guaranteed by such
Person or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such Guarantee or Lien is
called upon) and (iv) the product of (a) all dividend payments, whether or
not in cash, on any series of preferred stock of such Person or any of its
Subsidiaries, other than dividend payments on Equity Interests payable solely
in Equity Interests of the Company, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in
accordance with GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event
that the Company or any of its Subsidiaries incurs, assumes, Guarantees or
redeems any Indebtedness (other than revolving credit borrowings) or issues
preferred stock subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated but prior to the date on
which the event for which the calculation of the Fixed Charge Coverage Ratio
is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall
be calculated giving pro forma effect to such incurrence, assumption,
Guarantee or redemption of Indebtedness, or such issuance or redemption of
preferred stock, as if the same had occurred at the beginning of the
applicable four-quarter reference period. In addition, for purposes of
making the computation referred to above, (i) acquisitions that have been
made by the Company or any of its Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on
or prior to the Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period and Consolidated Cash Flow for
such reference period shall be calculated without giving effect to clause
(iii) of the proviso set forth in the definition of Consolidated Net Income,
and (ii) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or
8
businesses disposed of prior to the Calculation Date, shall be excluded, and
(iii) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, but only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations of
the referent Person or any of its Subsidiaries following the Calculation Date.
"FOREIGN SUBSIDIARY" means, with respect to any person, any Subsidiary of
such person which is incorporated or otherwise organized under the laws of
any jurisdiction other than the United States of America, any state thereof
or the District of Columbia and substantially all of whose consolidated
assets are located outside the United States.
"GAAP" means generally accepted accounting principles 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 have been approved by a significant
segment of the accounting profession, which are in effect on the Issue Date.
"GLOBAL NOTES" means, individually and collectively, the Regulation S
Temporary Global Note, the Regulation S Permanent Global Note and the Rule
144A Global Note.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"GOVERNMENT SECURITIES" means direct obligations of the United States of
America, or any agency or instrumentality thereof for the payment of which
the full faith and credit of the United States of America is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or (iii) agreements or arrangements designed to protect such Person
against fluctuations in foreign currency exchange rates in the conduct of its
operations.
"HOLDER" means a Person in whose name a Note is registered.
9
"INDEBTEDNESS" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP, as well
as all indebtedness of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the
extent not otherwise included, the Guarantee by such Person of any
indebtedness of any other Person.
"INDENTURE" means this Indenture as amended or supplemented from time to
time.
"INVESTMENTS" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Subsidiary of the Company, the Company shall be deemed
to have made an Investment on the date of any such sale or disposition equal
to the fair market value of the Equity Interests of such Subsidiary not sold
or disposed of in an amount determined as provided in the final paragraph of
Section 4.08.
"ISSUE DATE" means June 11, 1997, the date on which the Series A Notes
are originally issued.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
10
"LIQUIDATED DAMAGES" means all of the liquidated damages owing pursuant
to Section 5 of the Registration Rights Agreement.
"NET INCOME" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but
not loss), together with any related provision for taxes on such gain (but
not loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b)
the disposition of any securities by such Person or any of its Subsidiaries
or the extinguishment of any Indebtedness of such Person or any of its
Subsidiaries and (ii) any extraordinary or nonrecurring gain (but not loss),
together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the Company
or any of its Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation
expenses incurred as a result thereof, taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions
and any tax sharing arrangements), amounts required to be applied to repay
Indebtedness secured by such assets (other than pursuant to the New Credit
Agreement) and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
"NEW CREDIT AGREEMENT" means that certain Credit Agreement, dated as of
June 11, 1997, by and among the Company and DLJ Capital Funding, Inc., and
the banks named therein, for $45,000,000 aggregate principal amount of
borrowings, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case
as amended, modified, extended, renewed, refunded, replaced or refinanced
from time to time.
"NOTE CUSTODIAN" means the Trustee, as custodian with respect to the
Global Notes, or any successor entity thereto.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, costs, expenses, damages and other
liabilities payable under the documentation governing any Indebtedness.
"OFFICER" means the Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice President of the Company.
11
"OFFICER'S CERTIFICATE" means a certificate signed by an Officer, whom
must be the principal executive officer, principal financial officer or
principal accounting officer of the Company.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. Except with respect to any opinion
delivered pursuant to Article 8, the counsel may be an employee of the
Company. The counsel may be counsel to the Company.
"PERMITTED INVESTMENTS" means: (a) any Investment in the Company or in a
Wholly Owned Subsidiary of the Company and that is engaged in the test
instrumentation industry or a business reasonably related thereto; (b) any
Investment in Cash Equivalents, to the extent that such Investment is not
made for speculative investment purposes; (c) any Investment by the Company
or any Subsidiary of the Company in a Person, if as a result of such
Investment (i) such Person becomes a Wholly Owned Subsidiary of the Company
that is a Subsidiary Guarantor and that is engaged in the test
instrumentation industry or a business reasonably related thereto or (ii)
such Person is merged, consolidated or amalgamated with or into, or transfers
or conveys substantially all of its assets to, or is liquidated into, the
Company or a Wholly Owned Subsidiary of the Company that is a Subsidiary
Guarantor and that is engaged in the test instrumentation industry or a
business reasonably related thereto; (d) any Restricted Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was
made pursuant to and in compliance with Section 4.07; (e) any acquisition of
assets in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; and (f) other Investments in any Person
having an aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this
clause (f) that are at the time outstanding, not to exceed $5,000,000.
"PERMITTED JUNIOR SECURITIES" means Equity Interests in the Company or
unsecured debt securities that (i) are subordinated to all Senior Debt (and
any debt securities issued in exchange for Senior Debt) on terms at least as
favorable to the Senior Debt as those contained in Article 11 hereof, (ii)
may be guaranteed by the Subsidiary Guarantor on terms at least as favorable
to the Senior Debt as those contained in the Subsidiary Guarantees, and (iii)
have a final maturity and weighted average life to maturity which is the same
as or greater than, the Notes.
"PERMITTED LIENS" means: (i) Liens securing Senior Debt or Senior Debt of
Subsidiary Guarantors that was permitted by the terms hereof to be incurred;
(ii) Liens in favor of the Company or any Subsidiary; (iii) Liens on property
of a Person existing at the time such Person is merged into or consolidated
with the Company or any Subsidiary of the Company; PROVIDED that such Liens
were in existence prior to the
12
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company;
(iv) Liens on property existing at the time of acquisition thereof by the
Company or any Subsidiary of the Company, PROVIDED that such Liens were in
existence prior to the contemplation of such acquisition; (v) Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course
of business; (vi) Liens existing on the Issue Date; (vii) Liens to secure
Indebtedness (including Capital Lease Obligations) permitted by clause (ix)
of the second paragraph of Section 4.09 covering only the assets acquired
with such Indebtedness and accessions, modifications, products and proceeds
thereof; (viii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith
by appropriate proceedings promptly instituted and diligently concluded,
PROVIDED that any reserve or other appropriate provision as shall be required
in conformity with GAAP shall have been made therefor; and (ix) Liens
incurred in the ordinary course of business of the Company or any Subsidiary
of the Company with respect to obligations that do not exceed $5,000,000 at
any one time outstanding and that (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit (other than trade
credit in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of the property or materially impair the
use thereof in the operation of business by the Company or such Subsidiary.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Subsidiaries; PROVIDED
that: (i) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), plus accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of premiums, prepayments, penalties, reasonable expenses
incurred in connection therewith); (ii) such Permitted Refinancing
Indebtedness has a final maturity date equal to or later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either
by the Company or by the Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
13
"PERSON" means any individual, corporation, limited liability company,
partnership, association, joint stock company, trust or trustee thereof,
estate or executor thereof, unincorporated organization or joint venture.
"PRINCIPALS" means ▇▇▇▇▇▇▇, DLJMB Funding II, Inc., DLJ Merchant Banking
Partners II, L.P., DLJ Diversified Partners, L.P., UK Investment Plan 1997
Partners, DLJ First ESC L.L.C., DLJ Offshore Partners II, C.V, DLJ EAB
Partners, L.P., DLJ Millennium Partners, L.P. and Green Equity Investors II,
L.P.
"PUBLIC EQUITY OFFERING" means an initial registered public offering of
the Capital Stock of the Company, and any subsequent registered primary
offerings of Capital Stock of the Company.
"REGISTRATION RIGHTS AGREEMENT" means the A/B Exchange Registration
Rights Agreement, dated as of the Issue Date, by and among the Company and
the other parties named on the signature pages thereof, as such agreement may
be amended, modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities Act.
"REGULATION S GLOBAL NOTE" means a Regulation S Temporary Global Note or
Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent global note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached hereto as Exhibit
A-1, and that is deposited with and registered in the name of the Depositary,
representing the Notes sold in reliance on Regulation S.
"REGULATION S TEMPORARY GLOBAL NOTE" means a single temporary global note
in the form of the Note attached hereto as Exhibit A-2 that is deposited with
and registered in the name of the Depositary, representing Notes sold in
reliance on Regulation S.
"RELATED PARTY" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) or trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons
referred to in the immediately preceding clause (A).
14
"REPRESENTATIVE" means (a) the administrative agent under the New Credit
Agreement or (b) the indenture trustee or other trustee, agent or
representative for any other Senior Debt.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any
officer within the Corporate Trust Office (or any successor group of the
Trustee) assigned by the Trustee to administer the Indenture in its corporate
trust department.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 144A GLOBAL NOTE" means a permanent global note that contains the
paragraph referred to in footnote 1 and the additional schedule referred to
in footnote 2 to the form of the Note attached hereto as Exhibit A-1, and
that is deposited with and registered in the name of the Depositary,
representing Notes sold in reliance on Rule 144A.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SENIOR DEBT" means (i) all Obligations (including without limitation
interest accruing after a filing of a petition in bankruptcy whether or not
such interest is an allowable claim in such proceeding) of the Company under
the New Credit Agreement, and (ii) any other Indebtedness permitted to be
incurred by the Company under the terms hereof, unless the instrument under
which such Indebtedness is incurred expressly provides that such Guarantee is
on a parity with or subordinated in right of payment to the Subsidiary
15
the instrument under which such Indebtedness is incurred expressly provides
that such Guarantee is on a parity with or subordinated in right of payment to
the Subsidiary Guarantees. Notwithstanding anything to the contrary in the
foregoing, Senior Debt of the Subsidiary Guarantors will not include (v) any
liability under the Master Lease, dated as of October 21, 1994, as amended,
with respect to property in Indianapolis, Indiana, (w) any liability for
federal, state, local or other taxes owed or owing by the Subsidiary Guarantor,
(x) any Indebtedness of any of the Subsidiary Guarantors to the Company, any of
their Subsidiaries or other Affiliates thereof, (y) any trade payables or (z)
any Indebtedness that is incurred in violation of this Indenture.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation
S-X, promulgated pursuant to the Act, as such Regulation is in effect on the
date hereof.
"STATED MATURITY" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement dated as of
June 11, 1997 by and among certain holders of Capital Stock of the Company.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"SUBSIDIARY GUARANTEES" means the guarantees executed by the
Subsidiary Guarantors, substantially in the form of the guarantee attached to
Exhibit A hereto.
"SUBSIDIARY GUARANTORS" means each of (i) Wavetek U.S. Inc., a
Delaware corporation and (ii) any other subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions hereof, and their respective
successors and assigns.
16
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TRANSFER RESTRICTED SECURITIES" means securities that bear or are
required to bear the legend set forth in Section 2.06 hereof.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"VOTING STOCK" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiaries of such Person.
"YOKOGAWA" means Yokogawa Electric Corporation, a corporation
organized under the laws of Japan.
SECTION 1.02 OTHER DEFINITIONS
Defined in
Term Section
---- ----------
"Accredited Investor".................... 2.01
"Affiliate Transaction".................. 4.12
"Asset Sale Offer"....................... 4.07
"Asset Sale Offer Period"................ 4.07
"Asset Sale Offer Purchase Date"......... 4.07
"Bankruptcy Law"......................... 6.01
17
"Benefitted Party"....................... 10.01
"Change of Control Offer"................ 4.06
"Change Of Control Offer Period"......... 4.06
"Change of Control Payment".............. 4.06
"Change of Control Purchase Date"........ 4.06
"Custodian".............................. 6.01
"DTC".................................... 2.03
"Event of Default"....................... 6.01
"Legal Holiday".......................... 12.07
"Paying Agent"........................... 2.03
"Payment Blockage Notice"................ 11.03
"QIB".................................... 2.01
"Registrar".............................. 2.03
"Restricted Payments".................... 4.08
"Transfer Restricted Security"........... 2.06
SECTION 1.03 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 used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Notes means the Company or any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
SECTION 1.04 RULES OF CONSTRUCTION
Unless the context otherwise requires:
18
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
(5) provisions apply to successive events and
transactions.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING
The Notes and Subsidiary Guarantees and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1, which is part
of this Indenture. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Note shall be dated the
date of its authentication. The Notes shall be issued initially in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture, and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(a) RULE 144A GLOBAL NOTES. Notes offered and sold within the United
States to qualified institutional buyers as defined in Rule 144A ("QIBs") in
reliance on Rule 144A shall be issued initially in the form of Rule 144A Global
Notes, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Depositary at its New York office, and registered
in the name of the Depositary or a nominee of the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Rule 144A Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee as hereinafter provided.
(b) REGULATION S GLOBAL NOTES. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall be deposited on behalf of the purchasers
of the Notes represented
19
thereby with the Trustee, at its New York office, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The "40-day
restricted period" (as defined in Regulation S) shall beterminated upon the
receipt by the Trustee of (i) a written certificate from the Depositary
certifying that it has received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note (except to the extent of any beneficial owners thereof
who acquired an interest therein pursuant to another exemption from
registration under the Securities Act and who will take delivery of a
beneficial ownership interest in a Rule 144A Global Note, all as contemplated
by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate from the
Company. Following the termination of the 40-day restricted period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary
Global Note and the Regulation S Permanent Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
(c) GLOBAL NOTES IN GENERAL. Each Global Note shall represent such of
the outstanding Notes as shall be specified therein and each shall provide that
it shall represent the aggregate amount of outstanding Notes from time to time
endorsed thereon and that the aggregate amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the
Depositary or to a successor of the Depositary or its nominee.
(d) BOOK-ENTRY PROVISIONS. This Section 2.01(d) shall apply only to Rule
144A Global Notes and the Regulation S Permanent Global Notes deposited with or
on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.01(d) and Section 2.02, authenticate and deliver the Global Notes
that (i) shall be registered in the name of the Depositary or the nominee of
the Depositary and (ii) shall
20
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Agent Members shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the
Trustee as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such Global Note 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 Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the
exercise of the rights of an owner of a beneficial interest in any Global Note.
(e) CERTIFICATED NOTES. Notes issued to accredited investors as defined
in Rule 501(a)(1), (2), (3), (4) or (7) under the Securities Act ("Accredited
Investors") who are not QIBs and other Notes not issued as interests in the
Global Notes will be issued in certificated form substantially in the form of
Exhibit A-1 attached hereto (but without including the text referred to in
footnotes 1 and 2 thereto).
SECTION 2.02 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Notes for the Company by manual or facsimile
signature. The Company's seal shall be reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon delivery of an Authentication Order, authenticate
Notes for original issue up to the aggregate principal amount stated in
paragraph 4 of the Notes. The aggregate principal amount of Notes outstanding
at any time may not exceed such amount except as provided in Section 2.07
hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes
21
authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate of the Company.
Neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Note, check, advice of payment
or redemption notice, and any such document may contain a statement to the
effect that CUSIP numbers have been assigned by an independent service for
convenience of reference and that neither the Company nor the Trustee shall be
liable for any inaccuracy in such numbers.
SECTION 2.03 REGISTRAR AND PAYING AGENT
The Company shall maintain in the Borough of Manhattan, the City of New
York, State of New York, and in such other locations as it shall determine, (i)
an office or agency where Notes may be presented for registration of transfer
or for exchange ("Registrar") and (ii) an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall notify the Trustee in writing
of the name and address of any Agent not a party to this Indenture. If the
Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and Paying
Agent with respect to the Certificated Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, interest and Liquidated Damages, if any, on the
Notes, and shall notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held
22
by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or a Subsidiary) shall have no further liability for the
money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05 HOLDER 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
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may 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 the Holders of
Notes, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06 TRANSFER AND EXCHANGE
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.06. Transfers of beneficial interests in the Global
Notes to Persons required to take delivery thereof in the form of an interest
in another Global Note shall be permitted as follows:
(i) RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE. If, at any
time, an owner of a beneficial interest in a Rule 144A Global Note
deposited with the Depositary (or the Trustee as custodian for the
Depositary) wishes to transfer its interest in such Rule 144A
Global Note to a Person who is required or permitted to take
delivery thereof in the form of an interest in a Regulation S
Global Note, such owner shall, subject to the Applicable
Procedures, exchange or cause the exchange of such interest for an
equivalent beneficial interest in a Regulation S Global Note as
provided in this Section 2.06(a)(i). Upon receipt by the Trustee
of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Trustee
to credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial
interest in the Rule 144A Global Note to be exchanged, (2) a
23
written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the
Depositary to be credited with such increase and (3) a certificate
in the form of Exhibit B-1 hereto given by the owner of such
beneficial interest stating that the transfer of such interest has
been made in compliance with the transfer restrictions applicable
to the Global Notes and pursuant to and in accordance with Rule
903 or Rule 904 of Regulation S, then the Trustee, as Registrar,
shall instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of the applicable Rule 144A
Global Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Regulation S Global
Note by the principal amount at maturity of the beneficial
interest in the Rule 144A Global Note to be exchanged, to credit
or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Regulation S Global
Note equal to the reduction in the aggregate principal amount at
maturity of the Rule 144A Global Note, and to debit, or cause to
be debited, from the account of the Person making such exchange or
transfer the beneficial interest in the Rule 144A Global Note that
is being exchanged or transferred.
(ii) REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE. If, at any
time, an owner of a beneficial interest in a Regulation S Global Note
deposited with the Depositary (or with the Trustee as custodian for the
Depositary) wishes to transfer its interest in such Regulation S Global
Note to a Person who is required or permitted to take delivery thereof
in the form of an interest in a Rule 144A Global Note, such owner
shall, subject to the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial interest in a
Rule 144A Global Note as provided in this Section 2.06(a)(ii). Upon
receipt by the Trustee of (1) written instructions from the Depositary,
directing the Trustee, as Registrar, to credit or cause to be credited
a beneficial interest in the Rule 144A Global Note equal to the
beneficial interest in the Regulation S Global Note to be exchanged,
such instructions to contain information regarding the participant
account with the Depositary to be credited with such increase, (2)
a written order given in accordance with the Applicable Procedures
containing information regarding the participant account of the
Depositary and (3) a certificate in the form of Exhibit B-2 attached
hereto given by the owner of such beneficial interest stating (A) if
the transfer is pursuant to Rule 144A, that the Person transferring
such interest in a Regulation S Global Note reasonably believes that
the Person acquiring such interest in a Rule 144A Global Note is a QIB
and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable blue sky or securities
laws of any state of the United States, (B) that the transfer complies
with the requirements of Rule 144 under the Securities Act and any
applicable blue sky
24
or securities laws of any state of the United States or (C) if the
transfer is pursuant to any other exemption from the registration
requirements of the Securities Act, that the transfer of such
interest has been made in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in
accordance with the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from the
transferee or the transferor in form reasonably acceptable to the
Company and to the Registrar, then the Trustee, as Registrar,
shall instruct the Depositary to reduce or cause to be reduced the
aggregate principal amount at maturity of such Regulation S Global
Note and to increase or cause to be increased the aggregate
principal amount at maturity of the applicable Rule 144A Global
Note by the principal amount at maturity of the beneficial
interest in the Regulation S Global Note to be exchanged, and the
Trustee, as Registrar, shall instruct the Depositary, concurrently
with such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial
interest in the applicable Rule 144A Global Note equal to the
reduction in the aggregate principal amount at maturity of such
Regulation S Global Note and to debit or cause to be debited from
the account of the Person making such transfer the beneficial
interest in the Regulation S Global Note that is being transferred.
(b) TRANSFER AND EXCHANGE OF CERTIFICATED NOTES. When Certificated
Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal
amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested;
PROVIDED, HOWEVER, that the Certificated Notes presented or surrendered for
register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such
Holder or by his attorney, duly authorized in writing; and
(ii) in the case of a Certificated Note that is a Transfer
Restricted Security, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered to
the Registrar by a Holder for registration in the name of such
Holder,
25
without transfer, or such Transfer Restricted Security is
being transferred to the Company, a certification to that effect
from such Holder (in substantially the form of Exhibit B-3 hereto);
(B) if such Transfer Restricted Security is being transferred
to a QIB in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule
144 under the Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to that effect
from such Holder (in substantially the form of Exhibit B-3 hereto);
or
(C) if such Transfer Restricted Security is being transferred
in reliance on any other exemption from the registration requirements
of the Securities Act (including Rule 904 thereunder), a
certification to that effect from such Holder (in substantially the
form of Exhibit B-3 hereto) and an Opinion of Counsel from such
Holder or the transferee reasonably acceptable to the Company and to
the Registrar to the effect that such transfer is in compliance with
the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A RULE 144A GLOBAL NOTE OR
REGULATION S PERMANENT GLOBAL NOTE FOR A CERTIFICATED NOTE
(i) Any Person having a beneficial interest in a Rule 144A Global
Note or Regulation S Permanent Global Note may upon request, subject to
the Applicable Procedures, exchange such beneficial interest for a
Certificated Note. Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary for the Depositary,
from the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Rule 144A Global Note or Regulation S
Permanent Global Note, and, in the case of a Transfer Restricted
Security, the following additional information and documents (all of
which may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial
owner, a certification to that effect from such Person (in
substantially the form of Exhibit B-4 hereto);
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act or pursuant to an effective
registration statement under the
26
Securities Act, a certification to that effect from the transferor
(in substantially the form of Exhibit B-4 hereto); or
(C) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act (including Rule 904
thereunder), a certification to that effect from the transferor
(in substantially the form of Exhibit B-4 hereto) and an Opinion
of Counsel from the transferee or the transferor reasonably
acceptable to the Company and to the Registrar to the effect that
such transfer is in compliance with the Securities Act,
in which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian, cause the aggregate
principal amount of Rule 144A Global Notes or Regulation S Permanent Global
Notes, as applicable, to be reduced accordingly and, following such
reduction, the Company shall execute and the Trustee shall authenticate and
deliver to the transferee a Certificated Note in the appropriate principal
amount.
(ii) Certificated Notes issued in exchange for a beneficial
interest in a Rule 144A Global Note or Regulation S Permanent Global
Note, as applicable, pursuant to this Section 2.06(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Certificated Notes to the Persons in whose names such
Notes are so registered. Following any such issuance of Certificated
Notes, the Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal amount at maturity
of the applicable Global Note to reflect the transfer.
(d) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Note
may not be transferred as a whole except by the Depositary to a nominee of
the Depositary, or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
(e) TRANSFER AND EXCHANGE OF A CERTIFICATED NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL NOTE. Holders of Certificated Notes may offer, resell,
pledge or otherwise transfer such Notes only pursuant to an effective
registration statement under the Securities Act, inside the United States to
a QIB in a transaction meeting the requirements of Rule 144A, in a
transaction meeting the requirements of Rule 144 under the Securities
27
Act, outside the United States in a transaction meeting the requirements of
Rule 904 under the Securities Act or to the Company, in each case in compliance
with any applicable securities laws of any State of the United States or any
other applicable jurisdiction.
When Certificated Notes are presented by a Holder to the Registrar with
a request (x) to register the transfer of the Certificated Notes or (y) to
exchange such Certificated Notes for an equal principal amount of
Certificated Notes of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements
for such transactions are met; PROVIDED, HOWEVER, that the Certificated Notes
presented or surrendered for register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such
Holder or by his attorney, duly authorized in writing, which
instructions, if applicable, shall direct the Trustee (A) to cancel any
Certificated Note being exchanged for another Certificated Note or a
beneficial interest in a Global Note in accordance with Section 2.11
hereof, and (B) to make, or to direct the Registrar to make, an
endorsement on the appropriate Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by such Global Note;
and
(ii) such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Certificated Note is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect from
such Holder (in substantially the form of Exhibit B-5 hereto); or
(B) if such Certificated Note is being transferred to a QIB in
accordance with Rule 144A, pursuant to Rule 144 under the
Securities Act or pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act or pursuant to
an effective registration statement under the Securities Act, a
certification to that effect from such Holder (in substantially the
form of Exhibit B-5 hereto).
(f) AUTHENTICATION OF CERTIFICATED NOTES IN ABSENCE OF
DEPOSITARY. If at any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the
Global Notes
28
and a successor Depositary for the Global Notes is not appointed by the
Company within 90 days after delivery of such notice; or
(ii) the Company delivers to the Trustee an Officers' Certificate
notifying the Trustee that it elects to cause the issuance of
Certificated Notes under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, authenticate and
deliver, Certificated Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) LEGENDS
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Note certificate evidencing Global Notes and
Certificated Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the
following form (each a "Transfer Restricted Security"):
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO 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, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH
29
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND, IN THE CASE OF CLAUSE (b), (c) or (d), BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Note)
pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that is
a Certificated Note, the Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Security for a Certificated
Note that does not bear the legend set forth in (i) above and
rescind any restriction on the transfer of such Transfer
Restricted Security upon receipt of a certification from the
transferring Holder substantially in the form of Exhibit B-3
hereto; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted Security
shall not be required to bear the legend set forth in (i) above,
but shall continue to be subject to the provisions of Section
2.06(a) and (b) hereof; PROVIDED, HOWEVER, that with respect to
any request for an exchange of a Transfer Restricted Security that
is represented by a Global Note for a Certificated Note that does
not bear the legend set forth in (i) above, which request is made
in reliance upon Rule 144, the Holder thereof shall certify in
writing to the Registrar that such request is being made pursuant to
Rule 144 (such certification to be substantially in the form of
Exhibit B-4 hereto).
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Note)
in reliance on any exemption from the registration requirements of the
Securities
30
Act (other than exemptions pursuant to Rule 144A or Rule 144 under the
Securities Act) in which the Holder or the transferee provides an
Opinion of Counsel to the Company and the Registrar in form and
substance reasonably acceptable to the Company and the Registrar (which
Opinion of Counsel shall also state that the transfer restrictions
contained in the legend are no longer applicable):
(A) in the case of any Transfer Restricted Security that is a
Certificated Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Certificated Note
that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall not be
required to bear the legend set forth in (i) above, but shall continue
to be subject to the provisions of Section 2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon consummation of the Exchange
Offer in accordance with the Registration Rights Agreement, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate Series B Notes in
exchange for Series A Notes accepted for exchange in the Exchange Offer,
which Series B Notes shall not bear the legend set forth in (i) above, and
the Registrar shall rescind any restriction on the transfer of such
Series B Notes, in each case unless the Holder of such Series A Notes is
either (A) a broker-dealer, (B) a Person participating in the distribution
of the Series A Notes or (C) a Person who is an affiliate (as defined in
Rule 144A) of the Company.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in Global Notes have been exchanged for Certificated
Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for an interest in another Global Note or for
Certificated Notes, redeemed, repurchased or cancelled, the principal amount
of Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction.
31
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Certificated Notes and
Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, 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 similar
governmental charge payable upon exchange or transfer pursuant to
Sections 3.07, 4.06, 4.07 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or Global Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Certificated
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of or to exchange Notes
during a period beginning at the opening of business 15 days before
the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection; or
(B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and
interest and Liquidated
32
Damages, if any, on such Notes, and neither the Trustee, any Agent nor
the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and Global
Notes in accordance with the provisions of Section 2.02 hereof.
The Registrar may conclusively rely on inf ormation set forth in a
certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇, ▇-▇ or B-5
hereto, and other certificates and opinions received pursuant to this Section
2.06 and, in the absence of receipt of such a certificate or opinion, shall not
be deemed to have knowledge of a transfer of an interest in a Global Security
absent actual knowledge of such transfer.
SECTION 2.07 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company, shall authenticate
a replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge the
Holder for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08 OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, 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 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a BONA FIDE purchaser.
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If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay the principal amount of any Notes due and payable on that date, then on
and after that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.
SECTION 2.09 TREASURY NOTES
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES
Until Certificated Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of Certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Certificated Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11 CANCELLATION
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and 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 all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return
cancelled Notes to the Company (subject to the record retention requirement of
the Exchange Act). Certification of the destruction of all cancelled Notes
shall be delivered to the Company. The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
34
SECTION 2.12 DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date; PROVIDED that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or,
upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 45
days but not more than 60 days before a redemption date (unless a shorter
notice shall be satisfactory to the Trustee), an Officers' Certificate setting
forth the Section of this Indenture pursuant to which the redemption shall
occur, the redemption date, the principal amount of Notes to be redeemed and
the redemption price.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which
the Notes are listed or, if the Notes are not so listed, by lot or by such
other method as the Trustee shall deem fair and appropriate. In the event of
partial redemption by lot, the Trustee shall make the selection not less than
30 nor more than 60 days prior to the redemption date from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the portion of the principal amount thereof to be redeemed. Notes
and portions of them selected to be redeemed shall be in principal amounts of
$1,000 or whole multiples of $1,000;
35
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
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SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed, Notes called for redemption become
irrevocably due and payable on the redemption date at the price set forth in
the Note.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
On or before the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the redemption price
of and accrued interest and Liquidated Damages, if any, on all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall return to the
Company any money deposited with the Trustee or the Paying Agent by the Company
in excess of the amounts necessary to pay the redemption price of, and accrued
interest and Liquidated Damages, if any, on all Notes to be redeemed.
Interest on the Notes to be redeemed will cease to accrue on the
applicable redemption date, whether or not such Notes are presented for
payment, if the Company makes the redemption payment. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest will be
paid on the unpaid principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof. Section 8.06 shall apply to any Notes not redeemed within 2 years from
the redemption date.
SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.07 OPTIONAL REDEMPTION
Except as set forth below, the Notes will not be redeemable at the
Company's option prior to June 15, 2002. Thereafter, the Notes will be subject
to redemption at any time at the option of the Company, in whole or in part,
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, to the applicable redemption
date, if redeemed during the twelve-month period beginning on June 15 of the
years indicated below:
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YEAR PERCENTAGE
2002 ........................................... 105.063%
2003 ........................................... 103.375%
2004 ........................................... 101.688%
2005 and thereafter ............................ 100.000%
Notwithstanding the foregoing, during the first three years after
the Issue Date, the Company may on any one or more occasions redeem up to an
aggregate 33 1/3% of the principal amount of Notes originally issued at a
redemption price of 110.125% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date,
with the net cash proceeds of one or more Public Equity Offerings; PROVIDED
that at least 66 2/3% of the aggregate principal amount of Notes originally
issued remains outstanding immediately after such redemption; and PROVIDED,
FURTHER, that such redemption shall occur within 60 days of the date of the
closing of such Public Equity Offering.
Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION
The Company shall have no mandatory redemption or sinking fund obligations
with respect to the Notes.
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest and Liquidated Damages, if any, on the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any, and interest
and Liquidated Damages, if any, shall be considered paid on the date due if the
Paying Agent (other than the Company or a Subsidiary), holds at least one
Business Day before that date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal,
premium, if any, and interest and Liquidated Damages, if any, then due. Such
Paying Agent shall return to the Company, no later than five Business Days
following the due date for payment, any money (including accrued interest, if
any) that exceeds such amount of principal, premium, if any, and interest and
Liquidated Damages, if any, required for payment on the Notes.
38
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the applicable
interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue installments of interest (without regard to any applicable grace
period) at the same rate to the extent lawful.
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 (which may be an office of the Trustee or Registrar)
where Notes may be surrendered for registration of transfer or exchange 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 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 Corporate Trust Office of the Trustee.
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,
HOWEVER, 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 designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03.
SECTION 4.03 COMPLIANCE CERTIFICATE
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled in all
respects its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, that to the best of his knowledge each
has kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and is not in any respect in default in the performance or
observance of any of the terms, provisions and conditions hereof or thereof
(or, if such Default or Event of Default shall have occurred, describing all
such Defaults or Events
39
of Default of which he may have knowledge and what action each is taking or
proposes to take with respect thereto).
(b) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon becoming aware of (i) any Default or
Event of Default or (ii) any event of default under any other mortgage,
indenture or instrument as that term is used in Section 6.01(vi) which permits
an acceleration that could become an Event of Default, an Officers' Certificate
specifying such Default, Event of Default or event of default and what action
the Company is taking or proposes to take with respect thereto.
SECTION 4.04 TAXES
The Company shall, and shall cause each of its Subsidiaries to, pay prior
to delinquency all material taxes, assessments, and governmental levies except
as contested in good faith and by appropriate proceedings.
SECTION 4.05 STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, 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 has
been enacted.
SECTION 4.06 CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control, each Holder of Notes
shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase (the "Change of Control Payment"). Within ten days following any
Change of Control, the Company shall mail a notice to the Trustee and each
Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Notes on the date specified in such notice,
which date shall be no earlier than 30 days and no later than 60 days from the
date such notice is mailed (the "Change of Control Payment Date"), pursuant to
the procedures required by this Indenture and described in such notice. The
Company shall comply with the
40
requirements of 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 connection with the repurchase of the Notes as a result of a
Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; PROVIDED that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
(c) In the event a Change of Control occurs at a time when the Company is
prohibited from purchasing Notes under the terms of any Senior Debt, then prior
to the mailing of the notice to Holders pursuant to Section 4.06(a), but in any
event within ten days following any Change of Control, the Company shall obtain
the requisite consents, if any, under all agreements governing such Senior Debt
to the purchase of Notes pursuant to a Change of Control Offer or repay any
Senior Debt prohibiting such purchase of Notes.
(d) The Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company, including any requirement to repay in full any Senior Debt or obtain
the consents of any of the Company's lenders to such Change of Control Offer,
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
(e) The Change of Control provisions described above will be applicable
whether or not any other provisions of this Indenture are applicable.
SECTION 4.07 ASSET SALES
The Company shall not, and shall not permit any of its Subsidiaries to,
consummate an Asset Sale unless (i) the Company (or the Subsidiary, as the case
may
41
be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the Trustee) of the assets
or Equity Interests issued or sold or otherwise disposed of and (ii) at least
75% of the consideration therefor received by the Company or such Subsidiary
is in the form of cash; PROVIDED that the amount of (x) any liabilities (as
shown on the Company's or such Subsidiary's most recent balance sheet), of
the Company or any Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes or any
guarantee thereof) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Company or such
Subsidiary from further liability and (y) any securities, notes or other
obligations received by the Company or any such Subsidiary from such
transferee that are converted by the Company or such Subsidiary into cash (to
the extent of the cash received), shall be deemed to be cash for purposes of
this provision.
Within 12 months after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to repay
permanently Senior Debt or Senior Debt of the Subsidiary Guarantors, or (b) to
the acquisition of an interest in another business, the making of a capital
expenditure or the acquisition of other long-term assets, in each case, in the
test instrumentation industry or a business reasonably related thereto.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving indebtedness under the New Credit Agreement or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the first sentence of this paragraph will be deemed to
constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $5,000,000, the Company shall be required to make an offer to all
Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, in accordance with the procedures set forth in this Indenture. If
the aggregate principal amount of Notes surrendered by Holders thereof exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
SECTION 4.08 RESTRICTED PAYMENTS
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend or make any other
payment or distribution on account of the Company's or any of its Subsidiaries'
Equity Interests (including, without limitation, any payment in connection with
any merger or consolidation involving the Company) or to the direct or indirect
holders of the Company's or any of its
42
Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value (including without limitation, in connection with
any merger or consolidation involving the Company) any Equity Interests of
the Company or any direct or indirect parent of the Company or other
Affiliate of the Company (other than any such Equity Interests owned by the
Company or any Wholly Owned Subsidiary of the Company); (iii) make any
payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the
Notes, except a payment of interest or principal at Stated Maturity; or (iv)
make any Restricted Investment (all such payments and other actions set forth
in clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have
been permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by the Company and its Subsidiaries
after the Issue Date (excluding Restricted Payments permitted by clauses
(ii), (iii) and (iv) of the next succeeding paragraph), is less than the
sum of (i) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the Issue Date to the end of the Company's
most recently ended fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (ii) 100% of the aggregate net cash proceeds received by
the Company from the issue or sale since the Issue Date of Equity Interests
of the Company (other than Disqualified Stock) or of Disqualified Stock or
debt securities of the Company that have been converted into such Equity
Interests (other than Equity Interests (or Disqualified Stock or
convertible debt securities) sold to a Subsidiary of the Company and other
than Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after the Issue Date is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (A)
43
the cash return of capital with respect to such Restricted Investment
(less the cost of disposition, if any) and (B) the initial amount of
such Restricted Investment.
The foregoing provisions shall not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Indenture; (ii) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness or Equity Interests of the Company
in exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of, other Equity
Interests of the Company (other than any Disqualified Stock); PROVIDED that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from
clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption,
repurchase or other acquisition of subordinated Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend by a Subsidiary of the Company to the holders of its
common Equity Interests on a pro rata basis; and (v) the repurchase, redemption
or other acquisition or retirement for value of any Equity Interests of the
Company or any Subsidiary of the Company held by any member of the Company's
(or any of its Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement; PROVIDED that the aggregate
price paid for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $1,000,000 in any twelve-month period and $5,000,000
in total and no Default or Event of Default shall have occurred and be
continuing immediately after such transaction.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any non-cash Restricted Payment shall be determined by the
Board of Directors whose resolution with respect thereto shall be delivered to
the Trustee. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.08 were computed, together with a copy
of any fairness opinion required hereby.
SECTION 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to (collectively, "incur") any Indebtedness (including Acquired Debt) and that
the Company shall not issue any Disqualified Stock and shall not permit any of
its Subsidiaries to issue any shares of
44
preferred stock; PROVIDED, HOWEVER, that the Company may incur Indebtedness
(including Acquired Debt) or issue shares of Disqualified Stock if the Fixed
Charge Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock is issued would have been at least 2.0 to 1, determined on
a pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of
such four-quarter period.
The provisions of the first paragraph of this Section 4.09 shall not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) the incurrence by the Company of Indebtedness and letters of
credit (with letters of credit being deemed to have a principal amount
equal to the maximum potential liability of the Company and its
Subsidiaries thereunder) under the New Credit Agreement and the
incurrence by the Subsidiary Guarantors of Guarantees thereof; PROVIDED
that the aggregate principal amount of all Indebtedness outstanding
under the New Credit Agreement after giving effect to such incurrence
does not exceed $45,000,000 less the aggregate amount of all Net
Proceeds of Asset Sales applied to permanently repay any such
Indebtedness or, in the case of any such revolving Indebtedness,
permanently reduce commitments therefor pursuant to Section 4.07 above;
(ii) the incurrence by the Company or any of its Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding or that are incurred by the Company or any of its
Subsidiaries to protect against currency exchange rate risk in the
conduct of its operations;
(iii) the incurrence by the Foreign Subsidiaries of Indebtedness in
an aggregate amount that, when combined with Existing Indebtedness of
such Foreign Subsidiaries (other than Indebtedness described in clause
(iv) below), does not exceed $6,500,000 and the incurrence by the
Company of Guarantees of such Indebtedness;
(iv) the incurrence by the Foreign Subsidiaries of Indebtedness in
connection with the issuance of completion bonds, performance guaranties
or letters of credit, and the incurrence by the Company of Guarantees
thereof (with such bonds, guaranties or letters of credit being deemed
to have a principal amount equal to the maximum potential liability of
the Foreign Subsidiaries
45
thereunder) in an aggregate amount that, when combined with such
Existing Indebtedness of such Foreign Subsidiaries (other than
Indebtedness described in clause (iii) above), does not exceed
$4,000,000;
(v) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness;
(vi) the incurrence by the Company of Indebtedness represented by
the Notes and the incurrence by the Subsidiary Guarantors of
Indebtedness represented by the Subsidiary Guarantees;
(vii) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds
of which are used to refund, refinance or replace Indebtedness that was
permitted by this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Wholly Owned Subsidiaries; PROVIDED, HOWEVER, that (i) if the Company is
the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes and if a Subsidiary Guarantor is the obligor
on such Indebtedness, such Indebtedness is expressly subordinated to the
prior payment in full in cash of all Obligations with respect to the
Subsidiary Guarantees and (ii)(A) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a
Person other than the Company or a Wholly Owned Subsidiary and (B) any
sale or other transfer of any such Indebtedness to a Person that is not
either the Company or a Wholly Owned Subsidiary shall be deemed, in each
case, to constitute an incurrence of such Indebtedness by the Company or
such Subsidiary, as the case may be;
(ix) the incurrence by the Company or any of the Subsidiary
Guarantors of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or
cost of construction or improvements of property used in the business of
the Company or such Subsidiary Guarantors, in an aggregate principal
amount not to exceed $5,000,000 at any time outstanding; and
(x) the incurrence by the Company of additional Indebtedness in an
aggregate principal amount (or accreted value, as applicable) at any
time outstanding, including all Permitted Refinancing Indebtedness
incurred to refund,
46
refinance or replace any other Indebtedness incurred pursuant to this
clause (x), not to exceed $15,000,000.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (x) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this covenant and such item of Indebtedness
shall be treated as having been incurred pursuant to only one of such clauses
or pursuant to the first paragraph hereof. Any Indebtedness that may be
incurred pursuant to this covenant may be incurred under the New Credit
Agreement.
SECTION 4.10 LIENS
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired, or any income or profits therefrom
or assign or convey any right to receive income therefrom, except Permitted
Liens.
SECTION 4.11 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any
Subsidiary to (i)(a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or measured by, its
profits, or (b) pay any indebtedness owed to the Company or any of its
Subsidiaries, (ii) make loans or advances to the Company or any of its
Subsidiaries or (iii) transfer any of its properties or assets to the Company
or any of its Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (a) Existing Indebtedness as in effect on the
Issue Date, (b) the New Credit Agreement as in effect as of the Issue Date,
and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, PROVIDED that
such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacement or refinancings are no more restrictive
in the aggregate with respect to such dividend and other payment restrictions
than those contained in the New Credit Agreement as in effect on the Issue
Date, (c) this Indenture, the Notes and the Subsidiary Guarantees, (d)
applicable law, (e) any instrument regarding the sale, lease or purchase of
any asset or governing Indebtedness or Capital Stock of a Person acquired by
the Company or any of its Subsidiaries as in effect at the time of such
acquisition (except to the extent such Indebtedness was incurred in
connection with or in contemplation of such
47
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired, PROVIDED that, in the case
of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred, (f) by reason of customary non-assignment
provisions in licenses or leases entered into in the ordinary course of
business and consistent with past practices, (g) purchase money obligations
or Capital Lease Obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii)
above on the property so acquired, or (h) Permitted Refinancing Indebtedness,
PROVIDED that the restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive in the aggregate
than those contained in the agreements governing the Indebtedness being
refinanced.
SECTION 4.12 LIMITATION ON LAYERING DEBT
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt and senior in any respect in right of
payment to the Notes. In addition, the Subsidiary Guarantors shall not
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to any Senior
Debt of the Subsidiary Guarantor and senior in any respect in right of
payment to the Subsidiary Guarantees.
SECTION 4.13 TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of its Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or
enter into or make or amend any transaction, contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless (i)
such Affiliate Transaction is on terms that are at least as favorable as
those that could reasonably be expected to be obtained by the Company or the
relevant Subsidiary in a comparable transaction by the Company or such
Subsidiary with an unrelated Person and (ii) the Company delivers to the
Trustee (a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$1,000,000, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause
(i) above and that such Affiliate Transaction has been approved by a majority
of the disinterested members of the Board of Directors and (b) with respect
to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5,000,000, an opinion as to
the fairness to the Company of such Affiliate Transaction from a financial
point of view issued by an accounting, appraisal or investment banking firm
of
48
national standing; PROVIDED that the following shall not be deemed to be
Affiliate Transactions: (s) transactions pursuant to the Distribution
Agreement, dated April 23, 1996, and the Technical Collaboration Agreement,
dated as of April 23, 1996, each between the Company or one of its
Subsidiaries and Yokogawa, to the extent that such transactions are on terms
that are at least as favorable as those that could reasonably be expected to
be obtained by the Company or the relevant Subsidiary in a comparable
transaction by the Company or such Subsidiary with an unrelated Person; (t)
lease payments, renewals and extensions under the lease agreement, dated June
29, 1996, between the Company and Toyon Investments, a corporation controlled
by ▇▇▇▇▇▇▇, to the extent that aggregate annual lease payments do not exceed
$585,000 per year plus annual consumer price index adjustments not to exceed
three percent per annum; (u) any payments or transactions made in accordance
with, or that are authorized under, the Stockholders Agreement, including the
engagement or appointment of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation as underwriter in connection with an initial public offering; (v)
the engagement or appointment by the Company of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities
Corporation as its financial advisor, investment banking firm or arranger
with respect to the New Credit Agreement, to the extent that the fees and
expenses under such engagement are reasonable and customary for such
engagements; (w) the exercise by ▇▇▇▇▇▇▇ of his option to purchase the
Company's executive offices at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
including all the leasehold improvements and fixed assets therein pursuant to
the terms set forth in the resolution of the Company adopted on September 19,
1995; (x) any employment agreement entered into by the Company or any of its
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Subsidiary; (y) transactions between or among
the Company and/or its Subsidiaries; and (z) Restricted Payments that are
permitted by the provisions of Section 4.08 hereof.
SECTION 4.14 FOREIGN SUBSIDIARIES
100% of the Capital Stock of all Foreign Subsidiaries must be owned
directly or indirectly by the Company and the Company shall not allow its
Foreign Subsidiaries to acquire or create any Subsidiaries.
SECTION 4.15 REPORTS
Whether or not required by the rules and regulations of the Securities
and Exchange Commission (the "Commission"), so long as any Notes are
outstanding, the Company shall furnish to the Holders of Notes (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and, with respect to the annual information only, a report thereon by the
49
Company's certified independent auditors and (ii) all current reports
that would be required to be filed with the Commission on Form 8-K if the
Company were required to file such reports. In addition, whether or not
required by the rules and regulations of the Commission, the Company shall
file a copy of all such information and reports with the Commission for
public availability (unless the Commission will not accept such a filing) and
make such information available to securities analysts and prospective
investors upon request. In addition, the Company has agreed that, for so
long as any Notes remain outstanding, it shall furnish to the Holders and to
prospective purchasers designated by such Holders, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.16 ADDITIONAL SUBSIDIARY GUARANTEES
If the Company or any of its Subsidiaries shall acquire or create
another Subsidiary (other than a Foreign Subsidiary) after the Issue Date,
then such newly acquired or created Subsidiary shall execute a Subsidiary
Guarantee and deliver an opinion of counsel, in accordance with the terms of
Article 10 hereof.
ARTICLE 5
SUCCESSORS
SECTION 5.01 LIMITATIONS ON MERGER, CONSOLIDATION OR SALE OF SUBSTANTIALLY
ALL ASSETS
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Company is the surviving corporation or the entity or
the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof
or the District of Columbia; (ii) the entity or Person formed by or surviving
any such consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company
under the Notes and this Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee; (iii) immediately after such
transaction no Default or Event of Default exists; and (iv) except in the
case of a merger of the Company with or into a Wholly Owned Subsidiary of the
Company, the Company or the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment,
50
transfer, lease, conveyance or other disposition shall have been made (A)
will have Consolidated Net Worth immediately after the transaction equal to
or greater than the Consolidated Net Worth of the Company immediately
preceding the transaction and (B) will, after giving pro forma effect thereto
as if such transaction had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in
the first paragraph of Section 4.09 above.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture if applicable comply with this Indenture. The Trustee
shall be entitled to conclusively rely upon such Officers' Certificate and
Opinion of Counsel.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to the successor
corporation and not to the Company), 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, HOWEVER, that the
Company shall not be released or discharged from the obligation to pay the
principal of or interest on the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
An "Event of Default" occurs if: (i) default for 30 days in the payment
when due of interest on, or Liquidated Damages with respect to, the Notes
(whether or not prohibited by Article 11 hereof); (ii) default in payment
when due of the principal of or premium, if any, on the Notes (whether or not
prohibited by Article 11 hereof); (iii) failure by the Company to comply with
the provisions of Section 4.06, 4.07, 4.08 or 4.09; (iv) failure by the
Company for 60 days after notice to comply with any of its other agreements
in this Indenture or the Notes; (v) except as permitted by this Indenture,
51
any Subsidiary Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force
and effect or any Subsidiary Guarantor, or any Person acing on behalf of any
Subsidiary Guarantor, shall deny or disaffirm its obligations under its
Subsidiary Guarantee; (vi) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the Issue Date, which default (a) is caused by a failure to pay
principal when due at final stated maturity (a "Payment Default") or (b)
results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $7,500,000 or more; (vii) failure by the Company or
any of its Subsidiaries to pay final judgments aggregating in excess of
$7,500,000, which judgments are not paid, discharged or stayed for a period
of 60 days; (viii) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law (a) commences a
voluntary case, (b) consents to the entry of an order for relief against it
in an involuntary case, (c) consents to the appointment of a Custodian of it
or for all or substantially all of its property, (d) makes a general
assignment for the benefit of its creditors, or (e) generally is unable to
pay its debts as the same become due; or (ix) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that (a) is
for relief against the Company or any of its Significant Subsidiaries in an
involuntary case, (b) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of their property,
or (c) orders the liquidation of the Company or any of its Significant
Subsidiaries, and the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
SECTION 6.02 ACCELERATION
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and that
it is a notice of acceleration (the "Acceleration Notice"), and the same (i)
shall become immediately due and payable or (ii) if there are any amounts
outstanding under the New Credit Agreement, shall become immediately due and
payable upon the first to occur of an acceleration under the New Credit
Agreement or five Business Days after receipt by the Company and the
Representative
52
under the New Credit Agreement of such Acceleration Notice but only if such
Event of Default is then continuing. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company, any Significant Subsidiary or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Holders of the Notes may not enforce this Indenture or the
Notes except as provided herein. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. In the event of a declaration
of acceleration of the Notes because an Event of Default has occurred and is
continuing as a result of the acceleration of any Indebtedness described in
clause (vi) of the preceding paragraph, the declaration of acceleration of
the Notes shall be automatically annulled if the holders of any Indebtedness
described in clause (vi) have rescinded the declaration of acceleration in
respect of such Indebtedness within 30 days of the date of such declaration
and if (i) the annulment of the acceleration of the Notes would not conflict
with any judgment or decree of a court of competent jurisdiction, and (ii)
all existing Events of Default, except nonpayment of principal or interest or
Liquidated Damages on the Notes that became due solely because of the
acceleration of the Notes, have been cured or waived. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.07 hereof, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the
acceleration of the Notes. If an Event of Default occurs prior to June 15,
2002 by reason of any willful action (or inaction) taken (or not taken) by or
on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to June 15, 2002, then the initial premium
specified Section 3.07 hereof shall also become immediately due and payable
to the extent permitted by law upon the acceleration of the Notes.
SECTION 6.03 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal 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. A delay or
omission by the
53
Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. All remedies are cumulative to
the extent permitted by law.
SECTION 6.04 WAIVER OF PAST DEFAULTS
(1) Holders of a majority in aggregate principal amount of the Notes
then outstanding by written notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default
and its consequences under this Indenture (except a continuing Default or
Event of Default in the payment of interest or premium or Liquidated Damages
on, or the principal of, any Note held by a non-consenting Holder). 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 impair any right consequent thereon.
(2) The Trustee may, without the consent of any Holders of the Notes,
waive any Event of Default that relates to untimely or incomplete reports or
information if the legal rights of the Holders would not be materially
adversely affected thereby and may waive any other defaults the effect of
which would not materially adversely affect the rights of the Holders under
this Indenture.
SECTION 6.05 CONTROL BY MAJORITY
The Holders of a majority in principal amount of the then 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 it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Holders, or that may involve the
Trustee in personal liability.
SECTION 6.06 LIMITATION ON SUITS
A Holder may pursue a remedy with respect to this Indenture or the Notes
only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
54
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder
or to obtain a preference or priority over another 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 principal, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the
Note, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or adversely affected without
the consent of the Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(i) or (ii) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount
of principal and interest remaining unpaid on the Notes and interest on
overdue principal and, to the extent lawful, interest 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 is authorized to 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 the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in
55
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 hereof. To the extent that the payment of
any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties which the Holders of the Notes may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize 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, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07, including payment of all compensation, expense and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal, premium and interest, respectively;
Third: without duplication, to Holders of Notes for any other
Obligations owing to the Holders of Notes under the Notes or this Indenture;
and
Fourth: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
56
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 a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion 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 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 then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of their
own affairs.
(2) Except during the continuance of an Event of Default:
(a) The duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(b) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. In the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematic calculations or other facts stated therein).
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(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) This paragraph does not limit the effect of paragraph (2) of
this Section.
(b) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(c) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(7) All indemnifications and releases from liability granted herein to
the Trustee shall extend to the directors, officers, employees and agents of
the Trustee and to the Paying Agent and Registrar.
SECTION 7.02 RIGHTS OF TRUSTEE
(1) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document, but
the Trustee may, in its discretion, 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.
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(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(3) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(6) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
(7) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof unless written notice of any event which is in fact such a
Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture.
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 an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights. However, the Trustee is subject to Sections 7.10
and 7.11. Subject to the provisions of Section 310(b) of the TIA, the Trustee
shall be permitted to engage in transactions with the Company and its
Subsidiaries other than those contemplated by this Indenture.
SECTION 7.04 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or
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upon the Company or upon the Company's written direction under any provision
hereof. The Trustee shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee and it shall
not be responsible for any statement or recital herein or any statement in
the Notes or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS
The Trustee shall not be deemed to have notice of a Default or an Event
of Default unless (i) the Trustee has received written notice thereof from
the Company or any Holder or (ii) a Responsible Officer of the Trustee shall
have actual knowledge thereof. Except as otherwise expressly provided
herein, the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements herein, or of any of the documents executed in connection with the
Notes, or as to the existence of a Default or Event of Default hereunder.
Subject to Section 6.04(2), if a Default or Event of Default occurs and
is continuing and if it is known to a Responsible Officer of the Trustee, the
Trustee shall mail to Holders a notice of the Default or Event of Default
within 90 days after it obtains knowledge of the existence of such Event of
Default. Except in the case of a Default or Event of Default in payment of
principal, premium or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Holders.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS
Within 60 days after each September 30 beginning with the September 30
following the Issue Date, the Trustee shall mail to Holders a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a copy
of each report at the time of its mailing to Holders shall be filed with the
SEC and each stock exchange on which the Notes are listed. The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
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SECTION 7.07 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time reasonable
compensation, as the Company and the Trustee shall from time to time agree,
for its acceptance of this Indenture and services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Company shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee or any predecessor Trustee and
their agents, employees, officers and directors against any and all losses,
liabilities, expenses or taxes (other than taxes based upon, measured by or
determined by the income of the Trustee) incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent that such loss, damage,
claim, liability or expense is due to its own negligence or bad faith. 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. The Company shall defend the claim
and the Trustee shall cooperate in the defense. 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.
The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through its own negligence or bad faith.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(viii) or (ix) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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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.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a Custodian or public officer takes charge of the Trustee or
its property; or
(4) 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.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee after written request by any Holder who has been a Holder
for at least six months fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee
and 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. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08,
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the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America or of any state thereof authorized under such laws to exercise
corporate trustee power, shall be subject to supervision or examination by
Federal or state authority and shall have (or in the case of a corporation
included in a bank holding company system, the related bank holding company
shall have) a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and 310(a)(5). The Trustee is subject
to TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, with respect
to the Notes, elect to have either Section 8.02 or 8.03 be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article Eight.
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SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.02 and subject to the satisfaction of the conditions
contained in Section 8.04 hereof, the Company shall be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that (i) the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all
its other obligations under such Notes and this Indenture (and the Trustee,
on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), and (ii) the Subsidiary Guarantors shall
each be released from the Subsidiary Guarantee, except for the following
which shall survive until otherwise terminated or discharged hereunder: (a)
the rights of Holders of outstanding Notes to receive solely from the trust
fund described in Section 8.04, and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on such Notes when such payments are due, (b) the
Company's obligations with respect to such Notes under Sections 2.03, 2.05,
2.06, 2.07, 2.10 and 4.02, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (d) this Article Eight. Subject to compliance with
this Article Eight, the Company may exercise its option under this Section
8.02 notwithstanding the prior exercise of its option under Section 8.03 with
respect to the Notes.
SECTION 8.03 COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.01 of the option applicable
to this Section 8.03 and subject to satisfaction of the conditions contained
in Section 8.04 hereof, the Company shall be released from its obligations
under the covenants contained in Sections 4.03, 4.04, 4.06, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 and Article Five with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
64
whether directly or indirectly, by reason of any reference elsewhere herein
to any such covenant or by reason of any reference in any such covenant to
any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01(iii) or (iv), but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 of the option applicable to this
Section 8.03, Sections 6.01(iii) through 6.01(vii) shall not constitute
Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either
Section 8.02 or Section 8.03 to the outstanding Notes and Subsidiary
Guarantees:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 who shall agree to comply with the
provisions of this Article Eight applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Notes, (a) cash in U.S. Dollars in an amount, or
(b) non-callable Government Securities which through the scheduled
payment of principal and interest and Liquidated Damages, if any, in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, cash in U.S. Dollars in
an amount, or (c) a combination thereof, in such amounts, as will be
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 and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge the principal
of, premium, if any, and interest and Liquidated Damages, if any, on the
outstanding Notes on the stated maturity 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 of such
principal or installment of principal, premium, if any, or interest;
PROVIDED that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such non-callable Government Securities to
said payments with respect to the Notes;
(2) In the case of an election under Section 8.02, either
(i) (A) the Notes will become due and payable at their stated maturity
within one year after the date of such election pursuant to Section 8.02
or, within one year after the date of such election, the Notes will be
redeemable at the option of the Company and will be redeemed by the
Company pursuant to irrevocable instructions issued to the Trustee at the
time of such election for the giving of a notice of redemption by the
Trustee for such redemption and (B) the Company shall have
65
delivered to the Trustee an Opinion of Counsel in the United States
reasonably satisfactory to the Trustee to the effect that the Holders of
the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and
will be subject to Federal income tax in the same amount, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred or (ii) the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably
satisfactory to the Trustee confirming that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal
Defeasance has not occurred;
(3) In the case of an election under Section 8.03, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably satisfactory to the Trustee to the effect that the
Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to Federal income tax in the same amount, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(4) No Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) or, in so far as Section 6.01(viii) or (ix) is
concerned, at any time in the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(5) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party, including the New Credit
Agreement, or by which the Company or any of its Subsidiaries is bound;
(6) In the case of an election under either Section 8.02 or 8.03,
the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election
under Section 8.02 or
66
8.03 was not made by the Company with the intent of preferring the
Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or
others; and
(7) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the Legal
Defeasance under Section 8.02 or the Covenant Defeasance under
Section 8.03 (as the case may be) have been complied with as contemplated
by this Section 8.04.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.06, all money and Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the "Trustee")
pursuant to Section 8.04 in respect of the outstanding Notes shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such
money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or Government Securities
deposited pursuant to Section 8.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or Government Securities held by it as
provided in Section 8.04 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(1)), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
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SECTION 8.06 REPAYMENT TO THE COMPANY
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall
be paid to the Company on its request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter,
as a creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 8.07 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United States
Dollars or Government Securities in accordance with Section 8.02 or 8.03, as
the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.02 or
8.03, as the case may be; PROVIDED, HOWEVER, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following
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
held by the Trustee or Paying Agent and provided further that if such order
or judgment is issued in connection with the insolvency, receivership or
other similar occurrence with respect to the Trustee, upon the reinstatement
of such obligations the Company shall be released from its obligations under
Sections 4.03, 4.04, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and
4.15 and Article 5.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to provide for the assumption of the Company's obligations to
the Holders of the Notes in the case of a merger or consolidation
pursuant to Article Five hereof;
(d) to provide for additional Subsidiary Guarantors as set forth in
Section 4.16;
(e) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Note; or
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Company, accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company in the execution
of any supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to
enter into such supplemental indenture which affects its own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS
The Company and the Trustee may amend or supplement this Indenture or
the Notes with the written consent of the Holders of at least a majority in
principal amount of the then outstanding Notes (including consents obtained
in connection with a tender
69
offer or exchange offer for the Notes) and any existing Default (including,
without limitation, an acceleration of the Notes) or compliance with any
provision of this Indenture or the Notes may be waived with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for the Notes).
Upon the request of the Company, accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to
the Trustee of the consent of the Holders as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.06 hereof, the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After a supplement, amendment or waiver under this Section becomes
effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the supplement, amendment or waiver. 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, amendment or waiver. Subject to Sections 6.04(1) and 6.07 hereof,
the Holders of a majority in principal amount of the Notes then outstanding
may waive compliance in a particular instance by the Company with any
provision of this Indenture or the Notes. However, without the consent of
each Holder affected, a supplement, amendment or waiver under this Section
may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to redemption of the Notes
other than pursuant to Sections 4.06 and 4.07 hereof;
(3) reduce the rate of or change the time for payment of interest,
including default interest, or Liquidated Damages on any Note;
70
(4) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest or Liquidated Damages on any Note
(except a recision of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver
of the payment default that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the
Note;
(6) make any change in Section 6.04(1) or 6.07 hereof or in this
sentence of this Section 9.02 or the rights of Holders of Notes to
receive payments of principal of or premium, if any, or interest or
Liquidated Damages on the Notes;
(7) waive a redemption payment with respect to any Note (other than
a payment required by the provisions of Sections 4.06 or 4.07 hereof); or
(8) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment to this Indenture or the Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS
Until a supplement, amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder or portion of a Note that evidences the same debt as the consenting
Holder's Note, 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 if the Trustee receives written notice of revocation before the date
the waiver or amendment becomes effective. An amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may fix a record date for determining which Holders must
consent to such amendment or waiver. If the Company fixes a record date, the
record date shall be fixed at (i) the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 2.05,
or (ii) such other date as the Company shall designate.
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SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about a supplement,
amendment or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the supplement, amendment or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such supplement, amendment or waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment or supplemental indenture, the Trustee shall be entitled to
receive, if requested, an indemnity reasonably satisfactory to it and to
receive and, subject to Section 7.01, shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that such amendment or supplemental indenture is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that
it will be valid and binding upon the Company in accordance with its terms.
The Company may not sign an amendment or supplemental indenture until the
Board of Directors approves it.
ARTICLE 10
SUBSIDIARY GUARANTEES
SECTION 10.01 SUBSIDIARY GUARANTEES
Subject to the provisions of this Article 10, each Subsidiary Guarantor,
jointly and severally, hereby unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (a) the principal of, and premium, if any, and
interest on the Notes shall be duly and punctually paid in full when due,
whether at maturity, by acceleration or otherwise, and interest on overdue
principal, and premium, if any, and (to the extent permitted by law) interest
on any interest, if any, on the Notes and all other obligations of the
Company to the Holders or the Trustee hereunder or under the Notes (including
fees, expenses or other) shall be promptly paid in full or performed, all in
accordance with the terms hereof; and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, the same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated
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maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or failing performance of any other obligation of the
Company to the Holders, for whatever reason, each Subsidiary Guarantor shall
be obligated to pay, or to perform or to cause the performance of, the same
immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Subsidiary Guarantee, and shall
entitle the Trustee or the Holders of Notes to accelerate the obligations of
each Subsidiary Guarantor hereunder in the same manner and to the same extent
as the obligations of the Company. Each Subsidiary Guarantor hereby agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any thereof, the entry of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of
a Guarantor. Each Subsidiary Guarantor hereby waives and relinquishes: (a)
any right to require the Trustee, the Holders or the Company (each, a
"Benefitted Party") to proceed against the Company, the Subsidiaries or any
other Person or to proceed against or exhaust any security held by a
Benefitted Party at any time or to pursue any other remedy in any secured
party's power before proceeding against the Subsidiary Guarantors; (b) any
defense that may arise by reason of the incapacity, lack of authority, death
or disability of any other Person or Persons or the failure of a Benefitted
Party to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other Person or Persons; (c)
demand, protest and notice of any kind (except as expressly required by this
Indenture), including but not limited to notice of the existence, creation or
incurring of any new or additional Indebtedness or obligation or of any
action or non-action on the part of the Subsidiary Guarantors, the Company,
the Subsidiaries, any Benefitted Party, any creditor of the Subsidiary
Guarantors, the Company or the Subsidiaries or on the part of any other
Person whomsoever in connection with any obligations the performance of which
are hereby guaranteed; (d) any defense based upon an election of remedies by
a Benefitted Party, including but not limited to an election to proceed
against the Subsidiary Guarantors for reimbursement; (e) any defense based
upon any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (f) any defense arising because of a Benefitted
Party's election, in any proceeding instituted under the Bankruptcy Law, of
the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any
defense based on any borrowing or grant of a security interest under Section
364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that
the Subsidiary Guarantees shall not be discharged except by payment in full
of all principal, premium, if any, and interest on the Notes and all other
costs provided for under this Indenture, or as provided in Section 8.02.
If any Holder or the Trustee is required by any court or otherwise to
return to either the Company or the Subsidiary Guarantors, or any trustee or
similar official acting
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in relation to either the Company or the Subsidiary Guarantors, any amount
paid by the Company or the Subsidiary Guarantors to the Trustee or such
Holder, the Subsidiary Guarantees, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each of the Subsidiary
Guarantors agrees that it shall not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby
until payment in full of all obligations guaranteed hereby. Each Subsidiary
Guarantor agrees that, as between it, on the one hand, and the Holders of
Notes and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the
purposes hereof, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by such Subsidiary Guarantor for the purpose
of the Subsidiary Guarantee.
SECTION 10.02 EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES
To evidence the Subsidiary Guarantees set forth in Section 10.01 hereof,
each of the Subsidiary Guarantors agrees that a notation of the Subsidiary
Guarantees substantially in the form included in Exhibit A-1 hereto shall be
endorsed on each Note authenticated and delivered by the Trustee and that
this Indenture shall be executed on behalf of the Subsidiary Guarantors by
the President or one of the Vice Presidents of the Subsidiary Guarantors,
under a facsimile of its seal reproduced on this Indenture and attested to by
an Officer other than the Officer executing this Indenture.
Each of the Subsidiary Guarantors agree that the Subsidiary Guarantees
set forth in this Article 10 will remain in full force and effect and apply
to all the Notes notwithstanding any failure to endorse on each Note a
notation of the Subsidiary Guarantees.
If an Officer whose facsimile signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note on which the
Subsidiary Guarantees are endorsed, the Subsidiary Guarantees shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantees
set forth in this Indenture on behalf of the Subsidiary Guarantors.
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SECTION 10.03 SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
(a) Nothing contained in this Indenture or in the Notes shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor, or shall prevent the transfer of all
or substantially all of the assets of a Subsidiary Guarantor to the Company
or another Subsidiary Guarantor. Upon any such consolidation, merger,
transfer or sale, the Subsidiary Guarantee of such Subsidiary Guarantor shall
no longer have any force or effect.
(b) Except as provided in Section 10.03(a), or a transaction referred
to in Section 10.04, no Subsidiary Guarantor shall, in a single transaction
or series of related transactions, consolidate or merge with or into (whether
or not such Subsidiary Guarantor is the surviving corporation) another
corporation, Person or entity other than the Company or another Subsidiary
Guarantor unless (i) subject to the provisions of Section 10.04 hereof, the
entity or Person formed by or surviving any such consolidation or merger (if
other than such Subsidiary Guarantor) assumes all the obligations of such
Subsidiary Guarantor under its Guarantee and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee; (ii)
immediately after such transaction no Default or Event of Default exists;
(iii) the Company shall, after giving PRO FORMA effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09; and (iv) such Subsidiary Guarantor shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
addressed to the Trustee, each stating that such consolidation or merger and
such supplemental indenture, if any, comply with this Indenture and that such
supplemental indenture is enforceable. In case of any such consolidation or
merger and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the Subsidiary Guarantees endorsed upon the Notes and the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by such Guarantor, such successor corporation shall
succeed to and be substituted for such Subsidiary Guarantor with the same
effect as if it had been named herein as a Subsidiary Guarantor. Such
successor corporation thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to
the Trustee. All the Subsidiary Guarantees so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Subsidiary Guarantees had been issued at
the date of the execution hereof. The requirements of clause (iii) of this
Section 10.03(b) shall not apply in the case of a consolidation or merger
with or into the Company or any other Subsidiary Guarantor.
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(c) The Trustee, subject to the provisions of Section 10.04 hereof,
shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption of Obligations, comply with the
provisions of this Section 10.03. Such Officers' Certificate and Opinion of
Counsel shall comply with the provisions of Section 12.05.
SECTION 10.04 RELEASES FOLLOWING SALE OF ASSETS
In the event of a sale or other disposition of all or substantially all
of the assets of any Subsidiary Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Subsidiary Guarantor, which sale or other disposition otherwise complies with
the terms of this Indenture, then such Subsidiary Guarantor (in the event of
a sale or other disposition, by way of such a merger, consolidation or
otherwise, of all of the Capital Stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of such Subsidiary Guarantor) shall be
released from and relieved of any obligations under its Subsidiary Guarantee;
PROVIDED that the Net Proceeds from such sale or other disposition are
treated in accordance with the provisions of Section 4.07 hereof. Upon
delivery by the Company to the Trustee of an Officer's Certificate and
Opinion of Counsel, to the effect that such sale or other disposition was
made by the Company in accordance with the provisions of this Indenture,
including without limitation Section 4.07 hereof, the Trustee shall execute
any documents reasonably required in order to evidence the release of any
such Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee. Any Subsidiary Guarantor not released from its obligations under
its Subsidiary Guarantee shall remain liable for the full amount of principal
of and interest on the Notes and for the other obligations of any Subsidiary
Guarantor under this Indenture as provided in this Article 10.
SECTION 10.05 LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY
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 Subsidiary Guarantee
not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform 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
this Article 10 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 this Article 10, result in the
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obligations of such Subsidiary Guarantor under the Subsidiary Guarantee of
such Subsidiary Guarantor not constituting a fraudulent transfer or
conveyance.
SECTION 10.06 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE SUBSIDIARY
GUARANTORS
(a) For purposes of any provision of this Indenture which provides for
the delivery by any Subsidiary Guarantor of an Officers' Certificate and/or
an Opinion of Counsel, the definitions of such terms in Section 1.01 shall
apply to such Subsidiary Guarantor as if references therein to the Company
were references to such Subsidiary Guarantor.
(b) Any request, direction, order or demand which by any provision of
this Indenture is to be made by any Guarantor, shall be sufficient if
evidenced as described in Section 12.02 as if references therein to the
Company were references to such Subsidiary Guarantor.
(c) Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders
of Notes to or on any Subsidiary Guarantor may be given or served as
described in Section 12.02 as if references therein to the Company were
references to such Subsidiary Guarantor.
(d) Upon any demand, request or application by any Subsidiary Guarantor
to the Trustee to take any action under this Indenture, such Subsidiary
Guarantor shall furnish to the Trustee such certificates and opinions as are
required in Section 12.04 hereof as if all references therein to the Company
were references to such Subsidiary Guarantor.
SECTION 10.07 RELEASE OF SUBSIDIARY GUARANTEES
Concurrently with the defeasance of the Notes under Section 8.02 hereof,
the Subsidiary Guarantors shall be released from all of their obligations
under the Subsidiary Guarantees and this Article 10.
SECTION 10.08 SUBORDINATION OF SUBSIDIARY GUARANTEES
The obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee pursuant to this Article 10 is subordinated in right of payment to
the prior payment in full in cash of all Senior Debt of such Subsidiary
Guarantor on the same basis as the Notes are subordinated to Senior Debt of
the Company. For the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by any of the
Subsidiary Guarantors only at such times as they may receive
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and/or retain payments in respect of Notes pursuant to this Indenture,
including Article 11 hereof. In the event that the Trustee receives any
Subsidiary Guarantor payment at a time when the Trustee has actual knowledge
that such payment is prohibited by the foregoing sentence, such Subsidiary
Guarantor payment shall be paid over and delivered to the holders of the
Senior Debt of such Subsidiary Guarantor remaining unpaid, to the extent
necessary to pay in full all such Senior Debt. In the event that a Holder
receives any Subsidiary Guarantor payment at a time when such payment is
prohibited by the foregoing sentence, such Subsidiary Guarantor payment shall
be paid over and delivered to the holders of the Senior Debt of such
Subsidiary Guarantor remaining unpaid, to the extent necessary to pay in full
all such Senior Debt.
Each Holder of a Note by its acceptance thereof (a) agrees to and shall
be bound by the provisions of this Section 10.08, (b) authorizes and directs
the Trustee on the Holder's behalf to take such action as may be necessary
and appropriate to effectuate the subordination so provided, and (c) appoints
the Trustee as the Holder's attorney-in-fact for any and all such purposes.
ARTICLE 11
SUBORDINATION
SECTION 11.01 AGREEMENT TO SUBORDINATE
The Company agrees, and each Holder by accepting a Note agrees, that the
Indebtedness evidenced by the Note (including but not limited to Liquidated
Damages) is subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full in cash of all Senior
Debt (whether outstanding on the date hereof or hereafter created, incurred,
assumed or guaranteed), and that the subordination is for the benefit of the
holders of Senior Debt.
SECTION 11.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY
Upon any payment or distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshalling of
the Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled to
receive payment in full in cash of all Obligations due in
respect of such Senior Debt (including interest after the
commencement of any such proceeding at the rate specified
in the applicable Senior Debt whether or not allowable as
a claim in any such
78
proceeding) before Holders shall be entitled to receive
any payment with respect to the Notes (except that Holders
may receive (i) Permitted Junior Securities and (ii)
payments and other distributions made from any defeasance
trust created pursuant to Section 8.01 hereof); and
(2) until all Obligations with respect to Senior Debt
(as provided in subsection (1) above) are paid in full in
cash, any distribution to which Holders would be entitled
but for this Article shall be made to holders of Senior Debt
(except that Holders may receive (i) Permitted Junior
Securities and (ii) payments and other distributions made
from any defeasance trust created pursuant to Section 8.01
hereof), as their interests may appear.
SECTION 11.03 DEFAULT ON DESIGNATED SENIOR DEBT
The Company may not make any payment or distribution to the Trustee or
any Holder in respect of Obligations with respect to the Notes (other than
(i) Permitted Junior Securities and (ii) payments and other distributions
made from any defeasance trust created pursuant to Section 8.01 hereof) until
all principal and other Obligations with respect to the Senior Debt have been
paid in full if:
(i) a default in the payment of any principal or other
Obligations with respect to Designated Senior Debt occurs
and is continuing; or
(ii) a default, other than a payment default, on
Designated Senior Debt occurs and is continuing that then
permits holders of the Designated Senior Debt to accelerate
its maturity and the Trustee receives a notice of the
default (a "Payment Blockage Notice") from a Person who may
give it pursuant to Section 11.11 hereof. If the Trustee
receives any such Payment Blockage Notice, no subsequent
Payment Blockage Notice shall be effective for purposes of
this Section unless and until (i) at least 360 days shall
have elapsed since the delivery of the immediately prior
Payment Blockage Notice and (ii) all scheduled payments of
principal, premium, if any, and interest on the Notes that
have come due have been paid in full in cash. No
nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice.
The Company may and shall resume payments on and
distributions in respect of the Notes them upon the earlier of:
(1) in the case of a Default referred to in Section
11.03(i) hereof, upon the date which the default is cured or
waived, or
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(2) in the case of a default referred to in Section
11.03(ii) hereof, 179 days pass after notice is received,
unless a Payment Default on any Designated Senior Debt then
exists.
SECTION 11.04. ACCELERATION OF NOTES
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
SECTION 11.05. WHEN DISTRIBUTION MUST BE PAID OVER
In the event that the Trustee receives any payment or distribution of
any Obligations with respect to the Notes at a time when the Trustee has
actual knowledge that such payment is prohibited by Section 11.03 hereof,
such payment or distribution shall be held by the Trustee in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written
request, to, the holders of Senior Debt as their interests may appear or
their Representative under the indenture or other agreement (if any) pursuant
to which Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to
Senior Debt remaining unpaid to the extent necessary to pay such Obligations
in full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
In the event that a Holder receives any payment or distribution of any
Obligations with respect to the Notes at a time when such payment is
prohibited by Section 11.03 hereof, such payment or distribution shall be
paid forthwith over and delivered, upon written request, to, the holders of
Senior Debt as their interests may appear or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of all Obligations with respect to Senior Debt remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 11, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Debt, and shall not be liable to any such
holders if the Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any
holders of Senior Debt shall be entitled by virtue of this Article 11, except
if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
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SECTION 11.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of any Obligations
with respect to the Notes to violate this Article, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt as
provided in this Article.
SECTION 11.07. SUBROGATION
After all Senior Debt is paid in full in cash and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the
payment of Senior Debt. A distribution made under this Article 11 to holders
of Senior Debt that otherwise would have been made to Holders is not, as
between the Company and Holders, a payment by the Company on the Notes.
SECTION 11.08. RELATIVE RIGHTS
This Article defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and unconditional,
to pay principal of and interest on the Notes in accordance with
their terms;
(2) affect the relative rights of Holders and creditors of
the Company other than their rights in relation to holders of
Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to
the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders.
If the Company fails because of this Article to pay principal of or
interest on a Note on the due date, the failure is still a Default or Event
of Default.
SECTION 11.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY
No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes shall be impaired by any act or
failure to act by the
81
Company or any Holder or by the failure of the Company or any Holder to
comply with this Indenture.
Without in any way limiting the generality of the foregoing paragraph,
the holders of the Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article 11 or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following:
(a) change the manner, place or terms of payment or extend the time or
payment of, or renew or alter, Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; PROVIDED,
HOWEVER, that any such alteration shall not (i) increase the amount of Senior
Debt outstanding in a manner prohibited by this Indenture or (ii) otherwise
violate Section 4.09 hereof; (b) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Debt; (c)
release any Person in any manner for the collection of Senior Debt; PROVIDED,
HOWEVER, that any such sale, exchange, release or other transaction shall not
violate Section 4.13 hereof; and (d) exercise or refrain from exercising any
rights against the Company or any other Person; PROVIDED, HOWEVER, that in no
event shall any such actions limit the right of the Holder to take any action
to accelerate the maturity of the Notes in accordance with the provisions set
forth in Article 6 or to pursue any rights or remedies against the parties to
this Indenture under this Indenture or under applicable laws if the taking of
such action does not otherwise violate the terms of this Article 11.
SECTION 11.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 11, the Trustee and the Holders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt
and other Indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 11. Notwithstanding the foregoing, with
respect only to Obligations under the New Credit Agreement, the Trustee and
the Holders shall be entitled to rely only upon the order or decree made by
any court of competent jurisdiction or upon a certificate of a Representative
for the purpose of ascertaining the matters described in the preceding
sentence.
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SECTION 11.11. RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding the provisions of this Article 11 or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee shall have
received at its Corporate Trust Office at least five Business Days prior to
the date of such payment written notice of facts that would cause the payment
of any Obligations with respect to the Notes to violate this Article. Only
the Company or a Representative may give the notice. Nothing in this Article
11 shall impair the claims of, or payments to, the Trustee under or pursuant
to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 11.12. AUTHORIZATION TO EFFECT SUBORDINATION
Each Holder of a Note by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 11, and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof
of claim or proof of debt in the form required in any proceeding referred to
in Section 6.09 hereof at least 30 days before the expiration of the time to
file such claim, a Representative of Designated Senior Debt is hereby
authorized to file an appropriate claim for and on behalf of the Holders of
the Notes.
SECTION 11.13. AMENDMENTS
The provisions of this Article 11 or any related definitions shall not
be amended or modified in a manner adverse to the holders of Senior Debt
without the written consent of the holders of all Designated Senior Debt.
83
ARTICLE 12
MISCELLANEOUS
SECTION 12.01 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the duties imposed by TIA Section
318(c) shall control.
SECTION 12.02 NOTICES
Any notice or communication by the Company, any Subsidiary Guarantor or
the Trustee to the other is duly given if in writing and delivered in Person
or mailed by first-class mail, telecopier or overnight air courier
guaranteeing next day delivery, to the other's address:
If to the Company or a Subsidiary Guarantor:
Wavetek Corporation
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
84
Any notice or communication to a Holder shall be mailed by first-class
mail to its address shown on the register kept by the Registrar. 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. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.
SECTION 12.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
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 12.04 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:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 12.05 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
85
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of 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
(4) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied
with.
SECTION 12.06 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07 LEGAL HOLIDAYS
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized
or obligated by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 12.08 NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or stockholder of the
Company or any Subsidiary Guarantor, as such, shall have any liability for
any obligations of the Company or any Subsidiary Guarantor under the Notes,
this Indenture or any Subsidiary Guarantee or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
SECTION 12.09 DUPLICATE ORIGINALS
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
86
SECTION 12.10 GOVERNING LAW
The internal law of the State of New York shall govern and be used to
construe this Indenture and the Notes (without regard to conflicts of law
provisions). Each party hereto irrevocably submits itself to the
non-exclusive jurisdiction of the state and federal courts of New York for
purposes of this Indenture and agrees and consents that service of process
may be made upon it in any legal proceeding relating to this Indenture by any
means allowed under federal or New York law. The parties hereto hereby waive
and agree not to assert, by way of motion, as a defense or otherwise, that
any such proceeding is brought in an inconvenient forum or that the venue
thereof is improper.
SECTION 12.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 12.12 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 12.13 SEVERABILITY
In case any provision in this Indenture or 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 12.14 COUNTERPART 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 12.15 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 or provisions hereof.
SIGNATURES
WAVETEK CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
WAVETEK U.S. INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Exhibit A-1
(Face of Security)
___10 1/8% [Series A] [Series B] Senior Subordinated Notes due 2007
No. $__________
WAVETEK CORPORATION
promises to pay to _______________________________________
or registered assigns, the principal sum of
___________________
Dollars on June 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing
December 15, 1997
Record Dates: June 1 and December 1 (whether or not a
Business Day)
WAVETEK CORPORATION
By:
Name:
Title:
By:
Name:
Title:
TRUSTEE CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes
referred to in the within-mentioned
Indenture
THE BANK OF NEW YORK,
as Trustee
By:
(Authorized Signature)
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(Back of Security)
10 1/8% [Series A] [Series B] Senior Subordinated Notes due 2007
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇) ("▇▇▇"), to the issuer 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 may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be 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.](1)
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO
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, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSE
(b), (c) or (d), BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
-----------------------
(1.) This paragraph should be included only if the Note is issued in global
form.
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Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Wavetek Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
the rate and in the manner specified below and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. Interest on the Notes will accrue at the rate of
10 1/8% per annum and will be payable semi-annually in arrears on June 15 and
December 15, commencing on December 15, 1997, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"), to Holders of record on the immediately preceding June 1 and December
1, respectively.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. Interest on the Notes will accrue from the most recent date
to which interest has been paid or duly provided for or, if no interest has
been paid or duly provided for, from the date of original issuance of the
Notes. To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the applicable interest rate on the Notes plus one percent; it
shall pay interest on overdue installments of interest (without regard to
applicable grace periods) at the same rate, to the extent lawful, (i) if
payment is made during the period of five Business Days following the date on
which such interest was due, to the Persons who were to receive payment on
the date such interest was due or (ii) if payment is made after such period,
to the Persons who are Holders on a subsequent special record date, which
date shall be at the earliest practicable date but in all events at least
five Business Days prior to the payment date.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons
who are registered Holders of Notes at the close of business on the record
date next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date.
Principal, premium, if any, interest and Liquidated Damages, if any, on the
Notes shall be payable at the office or agency of the Company maintained for
such purpose within the City and State of New York, or at the option of the
Company, payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders of the Notes at their respective addresses set
forth in the register of Holders of Notes; PROVIDED that all payments with
respect to Notes the Holders of which have given wire transfer instructions
to the Company and the Trustee shall be required to be made by wire transfer
of immediately available funds to the accounts specified by the Holders
thereof. The Company shall pay principal, premium, if any, and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially the Trustee under the
Indenture will act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any
of its Subsidiaries may act as Paying Agent or Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of June 11, 1997 ("Indenture") among the Company, the Subsidiary
Guarantors and the
A1-3
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. Code Sections 77aaa-77bbbb) as in effect on the date of the
Indenture. The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. The terms of
the Indenture shall govern any inconsistencies between the Indenture and the
Notes. Terms not otherwise defined herein shall have the meanings assigned
in the Indenture. The Notes are general unsecured obligations of the Company
limited to $85,000,000 in aggregate principal amount.
5. OPTIONAL REDEMPTION.
The Notes are not redeemable at the Company's option prior to
June 15, 2002. Thereafter, the Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on June 15 of the years
indicated below:
YEAR PERCENTAGE
2002.................................... 105.063%
2003.................................... 103.375%
2004.................................... 101.688%
2005 and thereafter..................... 100.000%
Notwithstanding the foregoing, during the first three
years after the Issue Date, the Company may on any one or more
occasions redeem up to an aggregate 33 1/3% of the principal amount
of Notes originally issued in the Offering at a redemption price
of 110.125% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the redemption
date, with the net cash proceeds of one or more Public Equity
Offerings; PROVIDED that at least 66 2/3% of the aggregate principal
amount of Notes originally issued remains outstanding immediately
after such redemption; and PROVIDED, FURTHER, that such
redemption shall occur within 60 days of the date of the closing
of such Public Equity Offering.
6. MANDATORY REDEMPTION.
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
offer to purchase all or any part (equal to $1,000 or an integral multiple
thereof) of each Holder's Notes at a purchase price in cash equal to 101% of
the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase. Holders of Notes that are subject to an offer
to purchase will receive an offer to purchase from the Company prior to any
related purchase date, and may elect to have such Notes
A1-4
purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
(b) If the Company consummates any Asset Sale, the Company shall be
required, under certain circumstances, to apply the Excess Proceeds thereof
to an offer to all Holders of Notes to purchase the maximum principal amount
of Notes that may be purchased out of the Excess Proceeds at an offer price
in cash equal to 100% of the principal amount of the Notes plus accrued and
unpaid interest and Liquidated Damages, if any, to the date of purchase, in
accordance with the procedures set forth in the Indenture. Holders of Notes
that are subject to an offer to purchase will receive an offer to purchase
from the Company prior to any related purchase date, and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in face
denominations of $1,000 and integral multiples of $1,000. The Notes may be
transferred and exchanged as provided in the Indenture. The Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to
pay any taxes and fees required by law or permitted by the Indenture. The
Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption. Also, it need not (i) register the transfer
of or exchange any Notes during any period (a) beginning at the opening of
business on a Business Day 15 days before the day of any selection of Notes
for redemption and ending at the close of business on the day of selection or
(b) beginning at the opening of business on a Business Day 15 days before an
interest payment date and ending on the close of business on such interest
payment date or (ii) register the transfer or exchange of any Note selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
9. SUBORDINATION. The Notes are subordinated in right of payment, to
the extent and in the manner provided in Article 11 of the Indenture, to the
prior payment in full of all Senior Debt. The Company agrees, and each
Holder by accepting a Note consents and agrees, to the subordination provided
in the Indenture and authorizes the Trustee to give it effect.
10. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee for
registration of the transfer of this Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Note is registered
as its absolute owner for the purpose of receiving payment of principal of
and interest on this Note and for all other purposes whatsoever, whether or
not this Note is overdue, and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary. The registered holder of a Note
shall be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture, the Notes and the Subsidiary Guarantees may be amended or
supplemented with the written consent of the Holders of at least a majority
in principal amount of the then outstanding Notes, and any existing Default
(except a Default or Event of Default relating to the payment of principal,
premium or interest) or compliance with any provision of the Indenture or the
Notes may be waived with the written consent of the Holders of at least a
majority in principal amount of the then outstanding Notes. Without
A1-5
the consent of any Holder, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the
Notes in case of a merger or consolidation, to provide for additional
Subsidiary Guarantors, to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not materially
adversely affect the legal rights of any such Holder under the Indenture, or
to comply with the requirements of the Securities and Exchange Commission in
order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on, or Liquidated Damages with
respect to, the Notes (whether or not prohibited by the subordination
provisions of the Indenture); (ii) default in payment when due of the
principal of or premium, if any, on the Notes (whether or not prohibited by
the subordination provisions of the Indenture); (iii) failure by the Company
to comply with the provisions of Section 4.06, 4.07, 4.08 or 4.09 of the
Indenture; (iv) failure by the Company for 60 days after notice to comply
with any of its other agreements in the Indenture or the Notes; (v) except as
permitted by the Indenture, any Subsidiary Guarantee shall be held in any
judicial proceeding to be unenforceable or invalid or shall cease for any
reason to be in full force and effect or any Subsidiary Guarantor, or any
Person acing on behalf of any Subsidiary Guarantor, shall deny or disaffirm
its obligations under its Subsidiary Guarantee; (vi) default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the Issue Date, which default (a)
is caused by a failure to pay principal when due at final stated maturity (a
"Payment Default") or (b) results in the acceleration of such Indebtedness
prior to its express maturity and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $7,500,000 or more; (vii) failure
by the Company or any of its Subsidiaries to pay final judgments aggregating
in excess of $7,500,000, which judgments are not paid, discharged or stayed
for a period of 60 days; or (viii) certain events of bankruptcy or insolvency
with respect to the Company or any Significant Subsidiary. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may declare all the Notes
to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, with respect to the Company or any Subsidiary, all outstanding
Notes will become due and payable without further action or notice. 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 a majority in principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal, premium or interest) if it determines that withholding notice is
in their interest. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company
is required upon becoming
A1-6
aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH THE COMPANY. Subject to the provisions of
the Indenture, 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 an
Affiliate with the same rights it would have if it were not Trustee. Subject
to the provisions of Section 310(b) of the Trust Indenture Act, the Trustee
shall be permitted to engage in transactions with the Company and its
Subsidiaries other than those contemplated by the Indenture.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, or stockholder of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Notes, the Indenture or any Subsidiary
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes, 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.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of Notes under the Indenture,
Holders of Transferred Restricted Securities shall have all the rights set
forth in the Registration Rights Agreement dated as of the date of the
Indenture, between the Company and the parties named on the signature pages
thereof (the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Wavetek Corporation
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
A1-7
SUBSIDIARY GUARANTEE
The Subsidiary Guarantors listed below (hereinafter referred to as the
"Subsidiary Guarantors," which term includes any successors or assigns under
the Indenture (the "Indenture") and any additional Subsidiary Guarantors),
have irrevocably and unconditionally guaranteed (i) the due and punctual
payment of the principal of, premium, if any, and interest on the 10 1/8%
Senior Subordinated Notes due January 15, 2007 (the "Notes") of Wavetek
Corporation, a Delaware corporation (the "Company"), whether at stated
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal, and premium if any, and (to the extent
permitted by law) interest on any interest, if any, on the Notes, 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 set forth in Article
10 of the Indenture, (ii) in case of any extension of time of payment or
renewal of any Notes or any such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise, and (iii) the payment of any and all costs and expenses (including
reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Subsidiary Guarantee.
The obligations of each Subsidiary Guarantor to the Holder and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 10 of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Guarantee.
No stockholder, officer, director, employee or incorporator, as such,
past, present or future of each Subsidiary Guarantor shall have any liability
by reason of his or its status as such stockholder, officer, director,
employee or incorporator for any obligations of any Subsidiary Guarantor
under the Notes, the Indenture or its Subsidiary Guarantee or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Subsidiary Guarantor and its successors and
assigns until full and final payment of all of the Company's obligations
under the Notes and Indenture and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders, and, in the event of
any transfer or assignment of rights by any Holder or the Trustee, the rights
and privileges herein conferred upon that party shall automatically extend to
and be vested in such transferee or assignee, all subject to the terms and
conditions hereof. This is a Guarantee of payment and not of collectibility.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under
the Indenture by the manual signature of one of its authorized officers.
The Obligations of each Subsidiary Guarantor under its Subsidiary
Guarantee shall be limited to the extent necessary to insure that it does not
constitute a fraudulent conveyance under applicable law.
A1-8
THE TERMS OF ARTICLE 10 OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
WAVETEK U.S. INC.
By:------------------------
Name:
Title:
A1-9
Assignment Form
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date:___________________
Your Signature:--------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee.**
------------------------------
** Signature(s) must be guaranteed by an eligible guarantor institution
(banks, stock brockers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program) pursuant to
Securities and Exchange Commission Rule 17 Ad-15
A1-10
Option of Holder to Elect Purchase
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.06 or 4.07 of the Indenture, check the
box below:
/ / Section 4.06 / / Section 4.07
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.06 or 4.07 of the Indenture, state the amount
you elect to have purchased (if all, write "ALL"): $___________
Date:_____________________ Your Signature:-------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:_______________
Signature Guarantee.*
------------------------------
* Signature(s) must be guaranteed by an eligible guarantor institution
(banks, stock brockers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program) pursuant to
Securities and Exchange Commission Rule 17 Ad-15.
A1-11
SCHEDULE OF EXCHANGES FOR CERTIFICATED NOTES(2)
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Date of Exchange Amount of decrease in Amount of increase in Principal Amount of Signature of
Principal Amount of Principal Amount of this Global Note authorized officer of
this Global Note this Global Note following such decrease Trustee or Note
(or increase) Custodian
--------------------------------------------------------------------------------------------------------------------
-----------------------------
(2) TO BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
A1-12
EXHIBIT A-2
(Face of Regulation S Temporary Global Security)
10 1/8% Series A Senior Subordinated Notes due 2007
No. $
----------
WAVETEK CORPORATION
promises to pay to
---------------------------------------
or registered assigns, the principal sum of
-------------------
Dollars on June 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing December 15, 1997
Record Dates: June 1 and December 15 (whether or not a Business Day)
WAVETEK CORPORATION
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
TRUSTEE CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes
referred to in the within-mentioned
Indenture
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
(Authorized Signature)
A2-1
(Back of Security)
10 1/8% Series A Senior Subordinated Notes due 2007
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("▇▇▇"),
to the issuer 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 may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be 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.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR
THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO 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, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND,
IN THE CASE OF CLAUSE (b), (c) OR (d), BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST THEREON.
Subject to the provisions hereof, Wavetek Corporation, a Delaware
corporation (the "Company"), promises to pay to ______ the principal sum of
_____________ UNITED STATES DOLLARS (U.S. $ _________) on June 15, 2007, and
to pay interest on the principal amount of this Note at the rate of
A2-2
10 1/8% per annum. Interest on the Notes will be payable semi-annually in
arrears on June 15 and December 15, commencing on December 15, 1997, or if
any such day is not a Business Day, on the next succeeding Business Day (each
an "Interest Payment Date"). Interest will be computed on the basis of a
360-day year of twelve 30-day months. Interest on the Notes will accrue from
the most recent date to which interest has been paid or duly provided for or,
if no interest has been paid or duly provided for, from the date of original
issuance of this Note.
This Regulation S Temporary Global Note is issued in respect of an issue of
10 1/8% Senior Subordinated Notes due 2007 (the "Notes") of the Company, limited
to the aggregate principal amount of U.S. $85,000,000 issued pursuant to an
Indenture (the "Indenture") dated as of June 11, 1997, among the Company, the
Subsidiary Guarantors and The Bank of New York, as trustee (the "Trustee"), and
is governed by the terms and conditions of the Indenture, which terms and
conditions are incorporated herein by reference and, except as otherwise
provided herein, shall be binding on the Company and the Holder hereof as if
fully set forth herein. Unless the context otherwise requires, the terms used
herein shall have the meanings specified in the Indenture.
Until this Regulation S Temporary Global Note is exchanged for Regulation S
Permanent Global Notes, the Holder hereof shall not be entitled to receive
payments of interest hereon; until so exchanged in full, this Regulation S
Temporary Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or in part
for one or more Regulation S Permanent Global Notes or Rule 144A Global Notes
only (i) on or after the termination of the 40-day restricted period (as defined
in Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of all interest in this Regulation S Temporary Global Note for one or
more Regulation S Permanent Global Notes or Rule 144A Global Notes, the Trustee
shall cancel this Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or obligatory
until the certificate of authentication hereon shall have been duly manually
signed by the Trustee in accordance with the Indenture. This Regulation S
Temporary Global Note shall be governed by and construed in accordance with the
laws of the State of the New York. All references to "$," "Dollars," "dollars"
or "U.S. $" are to such coin or currency of the United States of America as at
the time shall be legal tender for the payment of public and private debts
therein.
A2-3
SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary Global Note
for other Global Notes have been made:
Date of Exchange Amount of decrease in Amount of increase in Principal Amount of this Signature of
Principal Amount of Principal Amount of Global Note authorized officer of
this Global Note this Global Note following such decrease Trustee or Note
(or increase) Custodian
------------------------------------------------------------------------------------------------------------------------------------
A2-4
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(i) of the Indenture)
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 10 1/8% Senior Subordinated Notes due 2007 of Wavetek Corporation
Reference is hereby made to the Indenture, dated as of June 11, 1997 (the
"Indenture"), among Wavetek Corporation, as issuer (the "Company"), the
Subsidiary Guarantors and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $______ principal amount of Notes which are
evidenced by one or more Rule 144A Global Notes (CUSIP No. ▇▇▇▇▇▇▇▇▇) and held
with the Depositary in the name of ___________________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes to a Person who will take delivery thereof in the form of
an equal principal amount of Notes evidenced by one or more Regulation S Global
Notes (CUSIP No. USU94214AA89), which amount, immediately after such transfer,
is to be held with the Depositary.
In connection with such request and in respect of such Notes, the Transferor
hereby certifies that such transfer has been effected in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with Rule 903 or Rule 904 under the United States Securities Act of
1933, as amended (the "Securities Act"), and accordingly the Transferor hereby
further certifies that:
(1) The offer of the Notes was not made to a person in the United States;
(2) either:
(a) at the time the buy order was originated, the transferee was outside the
United States or the Transferor and any person acting on its behalf
reasonably believed and believes that the transferee was outside the
United States; or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was prearranged
with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of the
requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
B1-1
(5) upon completion of the transaction, the beneficial interest being
transferred as described above is to be held with the Depositary.
Upon giving effect to this request to exchange a beneficial interest in a
Rule 144A Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Notes, the additional
restrictions applicable to transfers of interest in the Regulation S Temporary
Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
------------------------------
[Insert Name of Transferor]
By:
---------------------------
Name:
Title:
Dated:
---------------------, -----
cc: Wavetek Corporation
B1-2
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 10 1/8% Senior Subordinated Notes due 2007 of Wavetek Corporation
Reference is hereby made to the Indenture, dated as of June 11, 1997 (the
"Indenture"), among Wavetek Corporation, as issuer (the "Company"), the
Subsidiary Guarantors and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $______ principal amount of Notes which are evidenced
by one or more Regulation S Global Notes (CUSIP No. USU94214AA89) and held with
the Depositary in the name of ____________________________(the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the Notes
to a Person who will take delivery thereof in the form of an equal principal
amount of Notes evidenced by one or more Rule 144A Global Notes (CUSIP No.
▇▇▇▇▇▇▇▇▇), to be held with the Depositary.
In connection with such request and in respect of such Notes, the Transferor
hereby certifies that:
[CHECK ONE]
/ /such transfer is being effected pursuant to and in accordance with
---
Rule 144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Notes are being transferred to a Person that the
Transferor reasonably believes is purchasing the Notes for its own account,
or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A;
or
/ /such transfer is being effected pursuant to and in accordance with
---
Rule 144 under the Securities Act;
or
/ /such transfer is being effected pursuant to an effective registration
---
statement under the Securities Act;
B2-1
or
/ /such transfer is being effected pursuant to an exemption from the
---
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Notes are
being transferred in compliance with the transfer restrictions applicable
to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of which
the Transferor has attached to this certification) in form reasonably
acceptable to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and such Notes are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in Rule 144A Global Notes,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Rule 144A Global Notes pursuant to the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
------------------------------
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
--------------, ----
cc: Wavetek Corporation
B2-2
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF CERTIFICATED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 10 1/8% Senior Subordinated Notes due 2007 of Wavetek Corporation
Reference is hereby made to the Indenture, dated as of June 11, 1997 (the
"Indenture"), among Wavetek Corporation, as issuer (the "Company"), the
Subsidiary Guarantors and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with such request and in respect of the Notes surrendered to
the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
/ /the Surrendered Notes are being acquired for the Transferor's own
---
account, without transfer;
or
/ /the Surrendered Notes are being transferred to the Company;
---
or
/ /the Surrendered Notes are being transferred pursuant to and in
---
accordance with Rule 144A under the United States Securities Act of 1933,
as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Notes are being transferred
to a Person that the Transferor reasonably believes is purchasing the
Surrendered Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A;
or
/ /the Surrendered Notes are being transferred in a transaction permitted
---
by Rule 144 under the Securities Act;
or
B3-1
/ /the Surrendered Notes are being transferred pursuant to an effective
---
registration statement under the Securities Act;
or
/ /such transfer is being effected pursuant to an exemption from the
---
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Notes are
being transferred in compliance with the transfer restrictions applicable
to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of which the
Transferor has attached to this certification) in form reasonably
acceptable to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
------------------------------
[Insert Name of Transferor]
By:
-----------------------------------
Name:
Title:
Dated:
--------------, -----
cc: Wavetek Corporation
B3-2
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S PERMANENT GLOBAL NOTE
TO CERTIFICATED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 10 1/8% Senior Subordinated Notes due 2007 of Wavetek Corporation
Reference is hereby made to the Indenture, dated as of June 11, 1997 (the
"Indenture"), among Wavetek Corporation, as issuer (the "Company"), the
Subsidiary Guarantors and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
This letter relates to $______ principal amount of Notes which are evidenced
by one or more [Rule 144A Global Notes (CUSIP No. ▇▇▇▇▇▇▇▇▇)] [Regulation S
Permanent Global Note (CUSIP No. USU94214AA89)] and held with the Depositary in
the name of ___________________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Notes to a Person who
will take delivery thereof in the form of an equal principal amount of Notes
evidenced by one or more Certificated Notes (CUSIP No. ▇▇▇▇▇▇▇▇▇), which Notes,
immediately after such transfer, are to be delivered to the transferor at the
address set forth below.
In connection with such request and in respect of the Notes surrendered to
the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
/ /the Surrendered Notes are being transferred to the beneficial owner of
---
such Notes;
or
/ /the Surrendered Notes are being transferred pursuant to and in
---
accordance with Rule 144A under the United States Securities Act of 1933,
as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Notes are being transferred
to a Person that the Transferor reasonably believes is purchasing the
Surrendered Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A;
or
B4-1
/ /the Surrendered Notes are being transferred in a transaction permitted
---
by Rule 144 under the Securities Act;
or
/ /the Surrendered Notes are being transferred pursuant to an effective
---
registration statement under the Securities Act;
or
/ /such transfer is being effected pursuant to an exemption from the
---
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Notes are
being transferred in compliance with the transfer restrictions applicable
to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of which the
Transferor has attached to this certification) in form reasonably
acceptable to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
------------------------------
[Insert Name of Transferor]
By:
----------------------------------
Name:
Title:
Dated:
-------------, ----
------------------------------
[Address of Transferor]
------------------------------
cc: Wavetek Corporation
B4-2
EXHIBIT B-5
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM CERTIFICATED NOTE TO RULE 144A GLOBAL NOTE OR
REGULATION S PERMANENT GLOBAL NOTE
(Pursuant to Section 2.06(e) of the Indenture)
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: 10 1/8% Senior Subordinated Notes due 2007 of Wavetek Corporation
Reference is hereby made to the Indenture, dated as of June 11, 1997 (the
"Indenture"), among Wavetek Corporation, as issuer (the "Company"), the
Subsidiary Guarantors and The Bank of New York, as trustee. Capitalized terms
used but not defined herein shall have the meanings given to them in the
Indenture.
In connection with such request and in respect of the Notes surrendered to
the Trustee herewith for exchange (the "Surrendered Notes"), the Holder of such
Surrendered Notes hereby certifies that:
[CHECK ONE]
/ /the Surrendered Notes are being transferred to the beneficial owner of
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such Notes;
or
/ /the Surrendered Notes are being transferred pursuant to and in
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accordance with Rule 144A under the United States Securities Act of 1933,
as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Notes are being transferred
to a Person that the Transferor reasonably believes is purchasing the
Surrendered Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A;
or
/ /the Surrendered Notes are being transferred in a transaction permitted
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by Rule 144 under the Securities Act;
or
/ /the Surrendered Notes are being transferred in a transaction permitted
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by Rule 904 under the
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Securities Act;
or
/ /the Surrendered Notes are being transferred pursuant to an effective
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registration statement under the Securities Act;
or
/ /such transfer is being effected pursuant to an exemption from the
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registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Notes are
being transferred in compliance with the transfer restrictions applicable
to the Global Notes and in accordance with the requirements of the
exemption claimed, which certification is supported by an Opinion of
Counsel, provided by the transferor or the transferee (a copy of which the
Transferor has attached to this certification) in form reasonably
acceptable to the Company and to the Registrar, to the effect that such
transfer is in compliance with the Securities Act;
and the Surrendered Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, the initial purchaser of such Notes being transferred.
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Rule 144 or Regulation S under the Securities Act.
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[Insert Name of Transferor]
By:
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Name:
Title:
Dated:
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cc: Wavetek Corporation
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