UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2009
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _________ to _________.
Commission file number 1-8729
UNISYS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 38-0387840
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Unisys Way
Blue Bell, Pennsylvania 19424
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (215) 986-4011
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. YES [X] NO [ ]
Indicate by check mark whether the registrant has submitted electronically
and posted on its corporate Web site, if any, every Interactive Data File
required to be submitted and posted pursuant to Rule 405 of Regulation S-T
(Section 232.405 of this chapter) during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such files).
YES [ ] NO [ ]
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated filer"
and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large Accelerated Filer [X] Accelerated Filer [ ]
Non-Accelerated Filer [ ] Smaller Reporting Company [ ]
(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company (as defined
in Rule 12b-2 of the Exchange Act). YES [ ] NO [X]
Number of shares of Common Stock outstanding as of September 30, 2009
42,279,463 (after giving effect to the one-for-ten reverse stock split, which
became effective on October 26, 2009).
2
Part I - FINANCIAL INFORMATION
Item 1. Financial Statements.
UNISYS CORPORATION
CONSOLIDATED BALANCE SHEETS (Unaudited)
(Millions)
September 30, December 31,
2009 2008
----------- ------------
Assets
- ------
Current assets
Cash and cash equivalents $ 473.6 $ 544.0
Accounts and notes receivable, net 764.0 818.5
Inventories:
Parts and finished equipment 65.1 64.7
Work in process and materials 59.7 70.7
Deferred income taxes 17.7 23.8
Prepaid expenses and other current assets 112.4 116.7
-------- --------
Total 1,492.5 1,638.4
-------- --------
Properties 1,438.5 1,416.0
Less-Accumulated depreciation and
amortization 1,192.4 1,139.5
-------- --------
Properties, net 246.1 276.5
-------- --------
Outsourcing assets, net 292.0 314.9
Marketable software, net 175.3 202.0
Prepaid postretirement assets 55.6 20.7
Deferred income taxes 89.5 87.6
Goodwill 198.2 189.4
Other long-term assets 191.9 94.6
-------- --------
Total $2,741.1 $2,824.1
======== ========
Liabilities and stockholders' deficit
- -------------------------------------
Current liabilities
Current maturities of long-term debt $ 66.0 $ 1.5
Accounts payable 287.3 379.2
Other accrued liabilities 952.4 1,045.7
-------- --------
Total 1,305.7 1,426.4
-------- --------
Long-term debt 845.0 1,059.1
Long-term postretirement liabilities 1,410.5 1,497.0
Other long-term liabilities 325.4 265.4
Commitments and contingencies
Stockholders' deficit
Common stock, shares issued:
2009; 42.5, 2008; 37.2 .4 .4
Accumulated deficit (2,521.2) (2,596.0)
Treasury stock, shares at cost:
2009; .2, 2008; .2 (44.9) (44.8)
Paid-in capital 4,195.6 4,102.6
Accumulated other comprehensive loss (2,803.9) (2,904.6)
Noncontrolling interests 28.5 18.6
-------- --------
Total stockholders' deficit (1,145.5) (1,423.8)
-------- --------
Total $2,741.1 $2,824.1
======== ========
See notes to consolidated financial statements.
3
UNISYS CORPORATION
CONSOLIDATED STATEMENTS OF INCOME (Unaudited)
(Millions, except per share data)
Three Months Nine Months
Ended September 30 Ended September 30
------------------ ------------------
2009 2008 2009 2008
---- ---- ---- ----
Revenue
Services $1,006.0 $1,152.1 $3,019.8 $3,486.2
Technology 153.6 160.3 368.4 467.5
-------- -------- -------- --------
1,159.6 1,312.4 3,388.2 3,953.7
Costs and expenses
Cost of revenue:
Services 793.1 937.6 2,402.7 2,814.2
Technology 60.7 82.8 187.0 250.5
-------- -------- -------- --------
853.8 1,020.4 2,589.7 3,064.7
Selling, general and administrative 163.5 218.4 506.3 701.9
Research and development 24.3 35.7 76.8 98.6
-------- -------- -------- --------
1,041.6 1,274.5 3,172.8 3,865.2
-------- ------- -------- --------
Operating income 118.0 37.9 215.4 88.5
Interest expense 25.4 21.5 68.4 64.3
Other income (expense), net (3.3) (.9) (7.0) (8.4)
-------- -------- -------- --------
Income before income taxes 89.3 15.5 140.0 15.8
Provision for income taxes 26.2 45.1 58.4 72.5
-------- -------- -------- --------
Consolidated net income (loss) 63.1 (29.6) 81.6 (56.7)
Net income attributable to
noncontrolling interests (2.0) (5.1) (6.8) (15.4)
-------- ------- ------- --------
Net income (loss) attributable
to Unisys Corporation $ 61.1 $ (34.7) $ 74.8 $ (72.1)
======== ======== ======= ========
Earnings (loss) per share
attributable to Unisys Corporation
Basic $ 1.51 $ (.96) $ 1.96 $ (2.01)
======== ======== ======= ========
Diluted $ 1.48 $ (.96) $ 1.93 $ (2.01)
======== ======== ======= ========
See notes to consolidated financial statements.
4
UNISYS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(Millions)
Nine Months Ended
September 30
------------------
2009 2008
-------- -------
Cash flows from operating activities
Consolidated net income (loss) $ 81.6 $ (56.7)
Add (deduct) items to reconcile consolidated
net income (loss) to net cash provided by
operating activities:
Employee stock compensation (.3) (.2)
Company stock issued for U.S. 401(k) plan - 34.2
Depreciation and amortization of properties 71.7 80.4
Depreciation and amortization of outsourcing assets 113.9 126.0
Amortization of marketable software 70.3 90.0
Disposal of capital assets 5.7 8.6
Loss on sale of assets 4.7 -
Decrease in deferred income taxes, net 16.7 -
Decrease in receivables, net 96.4 175.9
Decrease in inventories 15.4 16.7
Decrease in accounts payable and other
accrued liabilities (248.8) (215.9)
Increase (decrease) in other liabilities 6.0 (43.3)
Increase in other assets (52.0) (108.7)
Other .5 9.4
------- ------
Net cash provided by operating activities 181.8 116.4
------- ------
Cash flows from investing activities
Proceeds from investments 296.8 4,838.1
Purchases of investments (294.9) (4,847.9)
Collateralized letters of credit (82.5) -
Investment in marketable software (43.7) (65.9)
Capital additions of properties (32.1) (51.8)
Capital additions of outsourcing assets (73.4) (96.6)
Purchases of businesses (1.9) (2.3)
------- ------
Net cash used for investing activities (231.7) (226.4)
------- ------
Cash flows from financing activities
Net reduction in short-term borrowings - (.1)
Payment of long-term debt (30.0) (200.0)
Financing fees (15.4) (.8)
------- ------
Net cash used for financing activities (45.4) (200.9)
------- ------
Effect of exchange rate changes on
cash and cash equivalents 24.9 (25.5)
------- ------
Decrease in cash and cash equivalents (70.4) (336.4)
Cash and cash equivalents, beginning of period 544.0 830.2
------- -------
Cash and cash equivalents, end of period $ 473.6 $ 493.8
======== =======
See notes to consolidated financial statements.
5
Unisys Corporation
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
In the opinion of management, the financial information furnished herein
reflects all adjustments necessary for a fair presentation of the financial
position, results of operations and cash flows for the interim periods
specified. These adjustments consist only of normal recurring accruals except
as disclosed herein. Because of seasonal and other factors, results for
interim periods are not necessarily indicative of the results to be expected
for the full year.
The preparation of financial statements in conformity with U.S. generally
accepted accounting principles requires management to make estimates and
assumptions about future events. These estimates and assumptions affect the
amounts of assets and liabilities reported, disclosures about contingent assets
and liabilities and the reported amounts of revenue and expenses. Such
estimates include the valuation of accounts receivable, inventories,
outsourcing assets, marketable software, goodwill and other long-lived assets,
legal contingencies, indemnifications, and assumptions used in the calculation
of income taxes and retirement and other post-employment benefits, among
others. These estimates and assumptions are based on management's best
estimates and judgment. Management evaluates its estimates and assumptions on
an ongoing basis using historical experience and other factors, including the
current economic environment, which management believes to be reasonable under
the circumstances. Management adjusts such estimates and assumptions when
facts and circumstances dictate. Illiquid credit markets, volatile equity and
foreign currency markets and reductions in information technology spending have
combined to increase the uncertainty inherent in such estimates and
assumptions. As future events and their effects cannot be determined with
precision, actual results could differ significantly from these estimates.
Changes in those estimates resulting from continuing changes in the economic
environment will be reflected in the financial statements in future periods.
The company's accounting policies are set forth in detail in note 1 of the notes
to the consolidated financial statements in the company's Annual Report on Form
10-K for the year ended December 31, 2008 filed with the Securities and
Exchange Commission. Such Annual Report also contains a discussion of the
company's critical accounting policies. The company believes that these
critical accounting policies affect its more significant estimates and
judgments used in the preparation of the company's consolidated financial
statements. There have been no changes in the company's critical accounting
policies from those disclosed in the company's Annual Report on Form 10-K for
the year ended December 31, 2008.
a. On October 23, 2009, a one-for-ten reverse stock split of the company's
common stock became effective. As a result of the stock split, every ten shares
of issued and outstanding common stock were automatically combined into one
issued and outstanding share of common stock without any change in the par
value of the shares. Accordingly, the financial statements reflect the impact
of the reverse stock split applied on a retroactive basis. The following have
been retroactively adjusted: (1) balance sheet - the number of issued common
shares; the number of treasury shares; the amount of common stock; and the
amount of paid-in-capital, (2) earnings per share, and (3) share-based plan
information.
6
b. The following table shows how earnings (loss) per share attributable to
Unisys Corporation was computed for the three and nine months ended September
30, 2009 and 2008 (dollars in millions, shares in thousands):
Three Months Nine Months
Ended September 30 Ended September 30
------------------ ------------------
2009 2008 2009 2008
---- ---- ---- ----
Basic Earnings (Loss) Per Share
Net income (loss) attributable
to Unisys Corporation $ 61.1 $ (34.7) $ 74.8 $ (72.1)
======== ========= ======== ========
Weighted average shares 40,569 36,094 38,215 35,797
======== ========= ======== ========
Basic earnings (loss) per share $ 1.51 $ (.96) $ 1.96 $ (2.01)
======== ========= ======== ========
Diluted Earnings (Loss) Per Share
Net income (loss) attributable
to Unisys Corporation $ 61.1 $ (34.7) $ 74.8 $ (72.1)
======== ========= ======== ========
Weighted average shares 40,569 36,094 38,215 35,797
Plus incremental shares
from assumed conversions
of employee stock plans 834 - 451 -
-------- --------- -------- --------
Adjusted weighted average shares 41,403 36,094 38,666 35,797
======== ========= ======== ========
Diluted earnings (loss) per share $ 1.48 $ (.96) $ 1.93 $ (2.01)
======== ========= ======== ========
At September 30, 2009 and 2008, 2.8 million and 3.4 million, respectively, of
employee stock options were antidilutive and therefore excluded from the
computation of diluted earnings per share.
c. A breakdown of the individual components of the company's cost-reduction
charges follows (in millions of dollars):
Work-Force
Reductions
-------------- Idle
Headcount Total U.S. Int'l. Lease Cost
--------- ----- ---- ------ ----------
Balance at December
31, 2008 787 $ 95.8 $ 25.1 $ 27.2 $ 43.5
Utilized (720) (57.9) (21.2) (22.4) (14.3)
Changes in estimates
and revisions (39) (4.7) (.7) (.3) (3.7)
Translation adjustments - 2.2 - (.4) 2.6
------ ------ ----- ----- ------
Balance at Sept. 30, 2009 28 $ 35.4 $ 3.2 $ 4.1 $ 28.1
====== ====== ===== ===== ======
Expected future utilization:
2009 remaining three months 28 $ 12.0 $ 3.2 $ 4.1 $ 4.7
Beyond 2009 23.4 - - 23.4
Due to changes in estimates related to cost-reduction charges, $4.7 million of
expense was recorded in the three months ended September 30, 2009 compared with
$2.0 million recorded as expense in the year-ago period, and $4.7 million was
recorded as income in the current nine-month period compared with $1.2 million
recorded as expense in the year-ago nine-month period.
7
d. Net periodic pension expense (income) for the three and nine months ended
September 30, 2009 and 2008 is presented below (in millions of dollars):
Three Months Three Months
Ended Sept. 30, 2009 Ended Sept. 30, 2008
---------------------- ----------------------
U.S. Int'l. U.S. Int'l.
Total Plans Plans Total Plans Plans
----- ----- ----- ----- ----- -----
Service cost $ 3.0 $ - $ 3.0 $ 4.1 $ - $ 4.1
Interest cost 101.8 71.2 30.6 105.1 71.0 34.1
Expected return on
plan assets (129.6) (96.1) (33.5) (142.0) (101.8) (40.2)
Amortization of prior
service cost .1 .2 (.1) .1 .1 -
Recognized net actuarial loss 19.5 18.6 .9 17.7 14.4 3.3
----- ------ ----- ----- ----- ----
Net periodic pension
(income) expense $ (5.2) $ (6.1) $ .9 $(15.0) $ (16.3) $ 1.3
====== ====== ===== ====== ======= =====
Nine Months Nine Months
Ended Sept. 30, 2009 Ended Sept. 30, 2008
------------------- ----------------------
U.S. Int'l. U.S. Int'l.
Total Plans Plans Total Plans Plans
----- ----- ------ ----- ----- ------
Service cost $ 8.6 $ - $ 8.6 $ 20.3 $ - $ 20.3
Interest cost 298.2 213.7 84.5 316.0 212.9 103.1
Expected return on
plan assets (383.2) (288.5) (94.7) (427.3) (305.5)(121.8)
Amortization of prior
service cost .6 .6 - .6 .5 .1
Recognized net actuarial loss 58.8 55.7 3.1 53.6 43.1 10.5
Curtailment loss - - - 1.5 - 1.5
------- ------- ----- ------- ----- ----
Net periodic pension
(income) expense $ (17.0) $(18.5) $ 1.5 $ (35.3) $(49.0) $13.7
======= ======= ===== ====== ====== =====
The company currently expects to make cash contributions of approximately $100-
$105 million to its worldwide defined benefit pension plans in 2009 compared
with $78.1 million in 2008. For the nine months ended September 30, 2009 and
2008, $55.8 million and $57.7 million, respectively, of cash contributions have
been made. In accordance with regulations governing contributions to U.S.
defined benefit pension plans, the company is not required to fund its U.S.
qualified defined benefit pension plan in 2009.
The expense related to the company's match to the U.S. 401(k) plan for the
nine months ended September 30, 2009 and 2008 was zero and $38.0 million,
respectively. Effective January 1, 2009, the company match was suspended.
Net periodic postretirement benefit expense for the three and nine months ended
September 30, 2009 and 2008 is presented below (in millions of dollars):
Three Months Nine Months
Ended Sept. 30 Ended Sept. 30
-------------- ---------------
2009 2008 2009 2008
---- ---- ---- ----
Service cost $ - $ .1 $ .2 $ .5
Interest cost 3.0 3.1 8.9 9.6
Expected return on assets (.1) (.2) (.3) (.4)
Amortization of prior
service cost .4 .3 1.1 1.5
Recognized net actuarial loss .9 1.2 2.6 3.4
---- ---- ---- -----
Net periodic postretirement
benefit expense $4.2 $4.5 $12.5 $14.6
==== ==== ===== =====
The company expects to make cash contributions of approximately $23 million to
its postretirement benefit plan in 2009 compared with $19.5 million in 2008.
For the nine months ended September 30, 2009 and 2008, $16.2 million and $11.9
million, respectively, of cash contributions have been made.
8
e. Due to its foreign operations, the company is exposed to the effects of
foreign currency exchange rate fluctuations on the U.S. dollar, principally
related to intercompany account balances. The company uses derivative
financial instruments to reduce its exposure to market risks from changes in
foreign currency exchange rates on such balances. The company enters into
foreign exchange forward contracts, generally having maturities of one month,
which have not been designated as hedging instruments. At September 30, 2009,
the fair value of such contracts was a net loss of $.3 million, of which $5.4
million has been recognized in "Prepaid expenses and other current assets" and
$5.7 million has been recognized in "Other accrued liabilities". Changes in
the fair value of these instruments was a loss of $.8 million and $.5 million
for the three months and nine months ended September 30, 2009, respectively,
which has been recognized in earnings in "Other income (expense), net" in the
company's consolidated statement of income.
f. Under stockholder approved stock-based plans, stock options, stock
appreciation rights, restricted stock and restricted stock units may be granted
to officers, directors and other key employees. At September 30, 2009, 1.5
million shares of unissued common stock of the company were available for
granting under these plans.
The fair value of stock option awards was estimated using the Black-Scholes
option pricing model with the following assumptions and weighted-average fair
values:
Nine Months Ended Sept. 30,
--------------------------
2009 2008
---- ----
Weighted-average fair value of grant $2.81 $16.19
Risk-free interest rate 1.57% 3.63%
Expected volatility 58.28% 45.28%
Expected life of options in years 3.77 3.67
Expected dividend yield - -
Restricted stock unit awards may contain time-based units, performance-based
units or a combination of both. Each performance-based unit will vest into
zero to 1.5 shares depending on the degree to which the performance goals are
met. Compensation expense resulting from these awards is recognized as expense
ratably for each installment from the date of grant until the date the
restrictions lapse and is based on the fair market value at the date of grant
and the probability of achievement of the specific performance-related goals.
The company records all share-based expense in selling, general and
administrative expense.
During the nine months ended September 30, 2009 and 2008, the company recorded
$.3 million of income and $.2 million of income for share-based compensation,
respectively, which is comprised of $2.0 million and $.7 million of restricted
stock unit income and $1.7 million and $.5 million of stock option expense,
respectively. During the three months ended September 30, 2009 and 2008, the
company reversed $2.4 million and $13.2 million, respectively, of previously-
accrued compensation expense related to performance-based restricted stock
units due to a change in the assessment of the achievability of the performance
goals. In addition, during the three months ended September 30, 2009, the
company reversed $2.6 million of previously-accrued share-based compensation
principally related to employees terminated in prior periods.
9
A summary of stock option activity for the nine months ended September 30, 2009
follows (shares in thousands):
Weighted-
Weighted- Average Aggregate
Average Remaining Intrinsic
Exercise Contractual Value
Options Shares Price Term (years) ($ in millions)
------- ------ --------- ------------ ---------------
Outstanding at
December
31, 2008 3,414 $163.78
Granted 1,159 6.40
Forfeited and
expired (505) 234.63
-----
Outstanding at
Sept. 30, 2009 4,068 110.46 2.47 $23.8
=====
Expected to vest at
Sept. 30, 2009 1,198 8.18 4.33 22.5
=====
Exercisable at
Sept. 30, 2009 2,807 156.45 1.63 -
=====
The aggregate intrinsic value represents the total pretax value of the
difference between the company's closing stock price on the last trading day of
the period and the exercise price of the options, multiplied by the number of
in-the-money stock options that would have been received by the option holders
had all option holders exercised their options on September 30, 2009. The
intrinsic value of the company's stock options changes based on the closing
price of the company's stock. The total intrinsic value of options exercised
for the nine months ended September 30, 2009 and for the nine months ended
September 30, 2008 was zero since no options were exercised. As of September
30, 2009, $2.5 million of total unrecognized compensation cost related to stock
options is expected to be recognized over a weighted-average period of 2.2
years.
A summary of restricted stock unit activity for the nine months ended
September 30, 2009 follows (shares in thousands):
Weighted-
Restricted Average
Stock Grant Date
Units Fair Value
---------- ----------
Outstanding at December 31, 2008 763 $50.66
Granted 166 6.37
Vested (57) 53.25
Forfeited and expired (289) 45.34
---
Outstanding at Sept. 30, 2009 583 40.45
===
The fair value of restricted stock units is determined based on the trading
price of the company's common shares on the date of grant. The aggregate
weighted-average grant-date fair value of restricted stock units granted during
the nine months ended September 30, 2009 and 2008 was $1.1 million and $27.8
million, respectively. As of September 30, 2009, there was $3.2 million of
total unrecognized compensation cost related to outstanding restricted stock
units granted under the company's plans. That cost is expected to be
recognized over a weighted-average period of 1.5 years. The aggregate weighted-
average grant date fair value of restricted share units vested during the nine
months ended September 30, 2009 and 2008 was $3.0 million and $1.7 million,
respectively.
Common stock issued upon exercise of stock options or upon lapse of
restrictions on restricted stock units is newly issued shares. Cash received
from the exercise of stock options for the nine months ended September 30, 2009
and 2008 was zero. In light of its tax position, the company is currently not
recognizing any tax benefits from the exercise of stock options or upon
issuance of stock upon lapse of restrictions on restricted stock units. Tax
benefits resulting from tax deductions in excess of the compensation costs
recognized are classified as financing cash flows.
10
g. The company has two business segments: Services and Technology. Revenue
classifications by segment are as follows: Services - systems integration and
consulting, outsourcing, infrastructure services and core maintenance;
Technology - enterprise-class servers and specialized technologies.
The accounting policies of each business segment are the same as those followed
by the company as a whole. Intersegment sales and transfers are priced as if
the sales or transfers were to third parties. Accordingly, the Technology
segment recognizes intersegment revenue and manufacturing profit on hardware
and software shipments to customers under Services contracts. The Services
segment, in turn, recognizes customer revenue and marketing profits on such
shipments of company hardware and software to customers. The Services segment
also includes the sale of hardware and software products sourced from third
parties that are sold to customers through the company's Services channels.
In the company's consolidated statements of income, the manufacturing costs of
products sourced from the Technology segment and sold to Services customers
are reported in cost of revenue for Services.
Also included in the Technology segment's sales and operating profit are sales
of hardware and software sold to the Services segment for internal use in
Services engagements. The amount of such profit included in operating income
of the Technology segment for the three months ended September 30, 2009 and
2008 was $1.5 million and $21.9 million, respectively. The amount for the nine
months ended September 30, 2009 and 2008 was $12.0 million and $33.1 million,
respectively. The profit on these transactions is eliminated in Corporate.
The company evaluates business segment performance on operating income
exclusive of restructuring charges and unusual and nonrecurring items, which
are included in Corporate. All other corporate and centrally incurred costs
are allocated to the business segments based principally on revenue,
employees, square footage or usage.
A summary of the company's operations by business segment for the three and
nine month periods ended September 30, 2009 and 2008 is presented below (in
millions of dollars):
Total Corporate Services Technology
----- --------- -------- ----------
Three Months Ended
September 30, 2009
------------------
Customer revenue $1,159.6 $1,006.0 $ 153.6
Intersegment - $ (33.2) 1.7 31.5
-------- -------- -------- -------
Total revenue $1,159.6 $ (33.2) $1,007.7 $ 185.1
======== ======== ======== =======
Operating income $ 118.0 $ 1.1 $ 77.7 $ 39.2
======== ======== ======== =======
Three Months Ended
September 30, 2008
------------------
Customer revenue $1,312.4 $1,152.1 $ 160.3
Intersegment - $ (67.5) 4.0 63.5
-------- -------- -------- -------
Total revenue $1,312.4 $ (67.5) $1,156.1 $ 223.8
======== ======== ======== =======
Operating income (loss) $ 37.9 $ (22.3) $ 35.6 $ 24.6
======== ======== ======== =======
Nine Months Ended
September 30, 2009
------------------
Customer revenue $3,388.2 $3,019.8 $ 368.4
Intersegment - $ (118.4) 5.0 113.4
-------- -------- -------- -------
Total revenue $3,388.2 $ (118.4) $3,024.8 $ 481.8
======== ======== ======== =======
Operating income $ 215.4 $ 16.0 $ 185.8 $ 13.6
======== ======== ======== =======
Nine Months Ended
September 30, 2008
----------------
Customer revenue $3,953.7 $3,486.2 $ 467.5
Intersegment - $(162.2) 9.4 152.8
-------- ------- -------- -------
Total revenue $3,953.7 $(162.2) $3,495.6 $ 620.3
======== ======= ======== =======
Operating income (loss) $ 88.5 $ (32.2) $ 101.4 $ 19.3
======== ======= ======== =======
11
Presented below is a reconciliation of total business segment operating income
to consolidated income before income taxes (in millions of dollars):
Three Months Nine Months
Ended Sept. 30 Ended Sept. 30
-------------- --------------
2009 2008 2009 2008
---- ---- ---- ----
Total segment operating income $ 116.9 $ 60.2 $ 199.4 $ 120.7
Interest expense (25.4) (21.5) (68.4) (64.3)
Other income (expense), net (3.3) (.9) (7.0) (8.4)
Corporate and eliminations 1.1 (22.3) 16.0 (32.2)
------- ------- ------- -------
Total income before income taxes $ 89.3 $ 15.5 $ 140.0 $ 15.8
======= ======= ======= =======
Customer revenue by classes of similar products or services, by segment, is
presented below (in millions of dollars):
Three Months Nine Months
Ended Sept. 30 Ended Sept. 30
-------------- --------------
2009 2008 2009 2008
---- ---- ---- ----
Services
Systems integration
and consulting $ 327.3 $ 361.2 $1,018.5 $1,094.7
Outsourcing 464.5 515.0 1,347.8 1,529.7
Infrastructure services 133.7 182.1 419.7 575.7
Core maintenance 80.5 93.8 233.8 286.1
-------- -------- -------- --------
1,006.0 1,152.1 3,019.8 3,486.2
Technology
Enterprise-class servers 138.8 141.3 295.5 384.7
Specialized technologies 14.8 19.0 72.9 82.8
-------- -------- -------- --------
153.6 160.3 368.4 467.5
-------- -------- -------- --------
Total $1,159.6 $1,312.4 $3,388.2 $3,953.7
======== ======== ======== ========
Geographic information about the company's revenue, which is principally based
on location of the selling organization, is presented below (in millions of
dollars):
Three Months Nine Months
Ended Sept. 30 Ended Sept. 30
-------------- --------------
2009 2008 2009 2008
---- ---- ---- ----
United States $ 541.4 $ 559.8 $1,622.0 $1,668.5
United Kingdom 139.5 182.9 405.9 592.5
Other international 478.7 569.7 1,360.3 1,692.7
------- -------- ------- --------
Total $1,159.6 $1,312.4 $3,388.2 $3,953.7
======== ======== ======== ========
12
h. Comprehensive income (loss) for the three and nine months ended September 30,
2009 and 2008 includes the following components (in millions of dollars):
Three Months Nine Months
Ended Sept. 30 Ended Sept. 30
------------------- -----------------
2009 2008 2009 2008
---- ------- ------ -------
Consolidated net income (loss) $ 63.1 $ (29.6) $ 81.6 $ (56.7)
------- ------ ------ -------
Other comprehensive income (loss)
Cash flow hedges
Gain - 1.6 - 1.0
Reclassification adjustments - (.4) - .1
Foreign currency translation adjustments 22.8 (37.0) 68.5 (37.3)
Postretirement adjustments 25.1 56.6 35.3 82.0
------- ------- ----- ------
Total other comprehensive income 47.9 20.8 103.8 45.8
------- ------- ----- ------
Consolidated comprehensive income (loss) 111.0 (8.8) 185.4 (10.9)
Comprehensive income attributable to
noncontrolling interests 1.6 2.0 9.9 11.5
------ ------ ----- -------
Comprehensive income (loss) attributable
to Unisys Corporation $ 112.6 $ (6.8) $ 195.3 $ .6
======= ======= ====== =======
Accumulated other comprehensive loss as of December 31, 2008 and September 30,
2009 is as follows (in millions of dollars):
Post-
Translation retirement
Total Adjustments Plans
----- ----------- --------
Balance at December 31, 2008 $(2,904.6) $(701.5) $(2,203.1)
Change during period 100.7 64.0 36.7
-------- ------- ---------
Balance at September 30, 2009 $(2,803.9) $(637.5) $(2,166.4)
======== ======= =========
Noncontrolling interests as of December 31, 2008 and September 30, 2009 is as
follows (in millions of dollars):
Non-
Controlling
Interests
-----------
Balance at December 31, 2008 $ 18.6
Net income 6.8
Translation adjustments 4.5
Postretirement plans (1.4)
------
Balance at September 30, 2009 $ 28.5
======
i. For equipment manufactured by the company, the company warrants that it
will substantially conform to relevant published specifications for 12 months
after shipment to the customer. The company will repair or replace, at its
option and expense, items of equipment that do not meet this warranty. For
company software, the company warrants that it will conform substantially to
then-current published functional specifications for 90 days from customer's
receipt. The company will provide a workaround or correction for material
errors in its software that prevents its use in a production environment.
The company estimates the costs that may be incurred under its warranties and
records a liability in the amount of such costs at the time revenue is
recognized. Factors that affect the company's warranty liability include the
number of units sold, historical and anticipated rates of warranty claims and
cost per claim. The company assesses quarterly the adequacy of its recorded
warranty liabilities and adjusts the amounts as necessary.
13
Presented below is a reconciliation of the aggregate product warranty
liability (in millions of dollars):
Three Months Nine Months
Ended Sept. 30 Ended Sept. 30
-------------- ----------------
2009 2008 2009 2008
---- ---- ---- ----
Balance at beginning of period $ 4.6 $ 5.1 $ 5.2 $ 6.9
Accruals for warranties
issued during the period .6 .6 1.7 2.0
Settlements made during
the period (.7) (.6) (2.1) (2.0)
Changes in liability for
pre-existing warranties
during the period,
including expirations (.4) (.2) (.7) (2.0)
------- ------- ------- ------
Balance at September 30 $ 4.1 $ 4.9 $ 4.1 $ 4.9
======= ======= ======= ======
j. Cash paid during the nine months ended September 30, 2009 and 2008 for
income tax was $45.4 million and $43.6 million, respectively.
Cash paid during the nine months ended September 30, 2009 and 2008 for interest
was $83.5 million and $64.4 million, respectively.
k. Effective September 30, 2009, the company adopted Accounting Standards
Update No. 2009-01, "Statement of Financial Accounting Standards No. 168 - The
FASB Accounting Standards Codification and Hierarchy of Generally Accepted
Accounting Principles," (ASU 2009-01). ASU 2009-01 is not expected to change
U.S. generally accepted accounting principles but combines all nongovernmental
authoritative standards into a comprehensive, topically organized online
database. All other accounting literature excluded from ASU 2009-01 will be
considered nonauthoritative. All references to authoritative accounting
literature have been made in accordance with ASU 2009-01.
Effective July 1, 2009, the company adopted Accounting Standards Update No.
2009-05, "Measuring Liabilities at Fair Value," (ASU 2009-05). ASU 2009-05
provides additional guidance clarifying the measurement of liabilities at fair
value that are within the scope of Accounting Standards Codification (ASC) 820
and addresses several key issues with respect to estimating the fair value of
liabilities in accordance with ASC 820. Among other things, the guidance
clarifies how the price of a traded debt security should be considered in
estimating the fair value of the issuer's liability. Adoption of ASU 2009-05
did not have an impact on the company's consolidated results of operations and
financial position.
Effective January 1, 2009, the company adopted ASC 805-10 related to business
combinations, which established principles and requirements for how the
acquirer: (a) recognizes and measures in its financial statements the
identifiable assets acquired, the liabilities assumed, and any noncontrolling
interest in the acquiree; (b) recognizes and measures the goodwill acquired in
the business combination or a gain from a bargain purchase; and (c) determines
what information to disclose to enable users of the financial statements to
evaluate the nature and financial effects of the business combination. ASC 805-
10 applies to business combinations for which the acquisition date is on or
after January 1, 2009.
Effective January 1, 2009, the company adopted ASC 810-10, which describes a
noncontrolling interest, sometimes called a minority interest, as the portion of
equity in a subsidiary not attributable, directly or indirectly, to a parent.
ASC 810-10 establishes accounting and reporting standards that require, among
other items: (a) the ownership interests in subsidiaries held by parties other
than the parent be clearly identified, labeled, and presented in the
consolidated statement of financial position within equity, but separate from
the parent's equity; (b) the amount of consolidated net income (loss)
attributable to the parent and the noncontrolling interests be clearly
identified and presented on the face of the consolidated statement of income;
and (c) entities provide sufficient disclosures that clearly identify and
distinguish between the interests of the parent and the interests of the
noncontrolling owners. As required by ASC 810-10, the presentation and
disclosure requirements have been applied retrospectively for all periods
presented. See note (n).
14
Effective January 1, 2009, the company adopted ASC 815-10, which requires
enhanced disclosures about (a) how and why an entity uses derivative
instruments, (b) how derivative instruments and related hedged items are
accounted for, and (c) how derivative instruments and related hedged items
affect an entity's financial position, financial performance and cash flows.
See note (e).
Effective June 30, 2009, the company adopted ASC 855-10, which establishes
general standards of accounting for and disclosure of events that occur after
the balance sheet date but before the date the financial statements are issued
or available to be issued. ASC 855-10 requires companies to reflect in their
financial statements the effects of subsequent events that provide additional
evidence about conditions at the balance-sheet date. Subsequent events that
provide evidence about conditions that arose after the balance-sheet date
should be disclosed if the financial statements would otherwise be misleading.
Disclosures should include the nature of the event and either an estimate of
its financial effect or a statement that an estimate cannot be made. See note
(p).
Effective June 30, 2009, the company adopted ASC 825-10, which requires an
entity to provide disclosures about fair value of financial instruments in
interim financial statements. See note (q).
In December 2008, the FASB issued ASC 715-20, which provides guidance on an
employer's disclosures about plan assets of a defined benefit pension or other
postretirement plan. Specifically, employers will be required to disclose
information about how investment allocation decisions are made, the fair value
of each major category of plan assets and information about the inputs and
valuation techniques used to develop the fair value measurements of plan assets.
The disclosures about plan assets required by ASC 715-20 shall be provided for
fiscal years ending after December 15, 2009, which is December 31, 2009 for
the company.
In June 2009, the FASB issued ASC 860-10, which among other changes, eliminates
the concept of a "qualifying special-purpose entity," changes the requirements
for derecognizing financial assets, defines the term participating interest to
establish specific conditions for reporting a transfer of a portion of a
financial asset as a sale and requires additional disclosures. ASC 860-10 is
effective as of the beginning of a reporting entity's first annual reporting
period that begins after November 15, 2009 (which for the company is
January 1, 2010), for interim periods within the first annual reporting period
and for interim and annual reporting periods thereafter. Earlier application
is prohibited. The recognition and measurement provisions are effective for
transfers occurring on or after the effective date. Based on an initial
review, the company believes that its current U.S. trade accounts receivable
facility will no longer meet the requirements to be treated as a sale of
receivables, and that it will be accounted for as a secured borrowing with
pledge of collateral.
In June 2009, the FASB issued ASC 860-10, which changes how a company
determines when an entity that is insufficiently capitalized or is not
controlled through voting (or similar rights) should be consolidated. The
determination of whether a company is required to consolidate an entity is
based on, among other things, an entity's purpose and design and a company's
ability to direct the activities of the entity that most significantly impact
the entity's economic performance. ASC 860-10 is effective as of the
beginning of a reporting entity's first annual reporting period that begins
after November 15, 2009 (which for the company is January 1, 2010), for interim
periods within the first annual reporting period and for interim and annual
reporting periods thereafter. Earlier application is prohibited. The company
is currently assessing the impact of the adoption of ASC 860-10 on its
consolidated results of operations, financial position and cash flows.
In October 2009, the FASB issued Accounting Standards Update No. 2009-13,
"Multiple-Deliverable Revenue Arrangements," (ASU 2009-13) and Accounting
Standards Update No. 2009-14, "Certain Revenue Arrangements That Include
Software Elements," (ASU 2009-14). ASU 2009-13 supersedes certain prior
accounting guidance and requires an entity to allocate arrangement
consideration at the inception of an arrangement to all of its deliverables
based on their relative selling prices (i.e., the relative-selling-price
method). ASU 2009-13 eliminates the use of the residual method of allocation
and requires the relative-selling-price method in all circumstances in which
an entity recognizes revenue for an arrangement with multiple deliverables
subject to this ASU. ASU 2009-14 supersedes prior software revenue recognition
accounting guidance by excluding from the scope of such prior guidance tangible
products that contain software elements and non-software elements that function
together to deliver the tangible product's essential functionality. Both of
these Accounting Standards Updates must be adopted at the same time and both
will be effective prospectively for revenue arrangements entered into or
materially modified in fiscal years beginning on or after June 30, 2010, which
15
for the company is January 1, 2011. Early adoption is permitted. If an entity
elects early adoption and the period of adoption is not the beginning of the
entity's fiscal year, the entity is required to apply the amendments
retrospectively from the beginning of the entity's fiscal year. An entity may
elect, but is not required, to adopt these amendments retrospectively to prior
periods. The company is currently assessing when it will adopt and is
evaluating the impact of the adoption of these Accounting Standards Updates on
its consolidated results of operations and financial position; however, the
company expects, as indicated in ASU 2009-14, that the application of the
amended guidance will result in revenue being recognized earlier than had been
required under the superseded guidance.
l. There are various lawsuits, claims, investigations and proceedings that
have been brought or asserted against the company, which arise in the ordinary
course of business, including actions with respect to commercial and government
contracts, labor and employment, employee benefits, environmental matters and
intellectual property. The company records a provision for these matters when
it is both probable that a liability has been incurred and the amount of the
loss can be reasonably estimated. Any provisions are reviewed at least
quarterly and are adjusted to reflect the impact and status of settlements,
rulings, advice of counsel and other information and events pertinent to a
particular matter.
The company believes that it has valid defenses with respect to legal matters
pending against it. Based on its experience, the company also believes that the
damage amounts claimed in the lawsuits disclosed below are not a meaningful
indicator of the company's potential liability. Litigation is inherently
unpredictable, however, and it is possible that the company's results of
operations or cash flow could be affected in any particular period by the
resolution of one or more of the legal matters pending against it.
In 2002, the company and the Transportation Security Administration (TSA)
entered into a competitively awarded contract providing for the establishment
of secure information technology environments in airports. The Civil Division
of the Department of Justice, working with the Inspector General's Office of
the Department of Homeland Security, is reviewing issues relating to labor
categorization and overtime on the TSA contract. The Civil Division is also
reviewing issues relating to cyber intrusion protection under the TSA and
follow-on contracts. The company is working cooperatively with the Civil
Division. The company does not know whether the Civil Division will pursue
these matters, or, if pursued, what effect they might have on the company.
The company has contracts with the General Services Administration (GSA), known
as Multiple Award Schedule Contracts, under which various U.S. governmental
agencies can purchase products and services from the company. Auditors from
the GSA's Office of Inspector General are reviewing the company's compliance
with the disclosure and pricing provisions under two of these contracts, and
whether the company has potentially overcharged the government under the
contracts. Separately, the company has made voluntary disclosures about these
matters to the responsible GSA contracting officers. The company is providing
pricing and other information to the GSA auditors and is working cooperatively
with them. As the audit is on-going, the company cannot predict the outcome
at this time.
In April 2007, the Ministry of Justice of Belgium sued Unisys Belgium SA-NV, a
Unisys subsidiary (Unisys Belgium), in the Court of First Instance of Brussels.
The Belgian government had engaged the company to design and develop software
for a computerized system to be used to manage the Belgian court system. The
Belgian State terminated the contract and in its lawsuit has alleged that the
termination was justified because Unisys Belgium failed to deliver satisfactory
software in a timely manner. It claims damages of approximately 28 million
euros. The company believes it has valid defenses to the claims and contends
that the Belgian State's termination of the contract was unjustified. Unisys
Belgium has filed its defense and counterclaim in the amount of approximately
18.5 million euros. The litigation is proceeding.
In December 2007, Lufthansa AG sued Unisys Deutschland GmbH, a Unisys subsidiary
(Unisys Germany), in the District Court of Frankfurt, Germany, for allegedly
failing to perform properly its obligations during the initial phase of a 2004
software design and development contract relating to a Lufthansa customer
loyalty program. Under the contract, either party was free to withdraw from
the project at the conclusion of the initial design phase. Rather than
withdraw, Lufthansa instead terminated the contract and failed to pay the
balance owed to Unisys Germany for the initial phase. Lufthansa's lawsuit
alleges that Unisys Germany breached the contract by failing to deliver a
proper design for the new system and seeks approximately 21.4 million euros in
damages. The company believes it has valid defenses and has filed its defense
and a counterclaim in the amount of approximately 1.5 million euros. The
litigation is proceeding.
16
In July 2008, Lufthansa Systems Passenger Services GmbH sued Unisys Germany in
the District Court of Frankfurt, Germany, in connection with a 2005 agreement
under which Unisys Germany was to develop passenger management software for
Lufthansa Systems. Lufthansa Systems purported to terminate the agreement for
cause in July 2007 claiming that Unisys Germany failed to deliver satisfactory
software in a timely manner. The lawsuit sought a monetary recovery of
approximately 49 million euros. The company filed its defense and a
counterclaim in the amount of approximately 8.6 million euros. In August
2009, the district court dismissed all of Lufthansa Systems's claims except a
claim for 1.9 million euros for delay of the project and entered judgment
against Unisys Germany for this amount, plus interest and a small portion of
Lufthansa Systems's attorneys' fees. Having dismissed Lufthansa Systems's
claims, the court did not rule on the Unisys Germany counterclaim. Both
parties have appealed the decision.
Notwithstanding that the ultimate results of the lawsuits, claims,
investigations and proceedings that have been brought or asserted against the
company are not currently determinable, the company believes that at September
30, 2009, it has adequate provisions for any such matters.
m. Accounting rules governing income taxes require that deferred tax assets and
liabilities be recognized using enacted tax rates for the effect of temporary
differences between the book and tax bases of recorded assets and liabilities.
In addition, these rules also require that deferred tax assets be reduced by a
valuation allowance if it is more likely than not that some portion or the
entire deferred tax asset will not be realized.
The company evaluates quarterly the realizability of its deferred tax assets by
assessing its valuation allowance and by adjusting the amount of such
allowance, if necessary. The factors used to assess the likelihood of
realization are the company's forecast of future taxable income and available
tax-planning strategies that could be implemented to realize the net deferred
tax assets. The company uses tax-planning strategies to realize or renew net
deferred tax assets to avoid the potential loss of future tax benefits.
In 2005, based upon the level of historical taxable income and projections of
future taxable income over the periods during which the deferred tax assets are
deductible, management concluded that it is more likely than not that the U.S.
and certain foreign deferred tax assets in excess of deferred tax liabilities
would not be realized. A full valuation allowance was recognized in 2005 and
is currently maintained for all U.S. and certain foreign deferred tax assets in
excess of deferred tax liabilities. The company will record a tax provision or
benefit for those international subsidiaries that do not have a full valuation
allowance against their deferred tax assets. Any profit or loss recorded for
the company's U.S. operations will have no provision or benefit associated
with it. As a result, the company's provision or benefit for taxes will vary
significantly depending on the geographic distribution of income.
n. Certain prior year amounts have been reclassified due to the adoption of ASC
810-10, see note (k). As a result of the adoption, the following retroactive
adjustment was made: the December 31, 2008 noncontrolling interests' balance of
$30.5 million, previously presented in other long-term liabilities, has been
presented as part of stockholders' deficit. Also, in connection with the
adoption, the December 31, 2008 noncontrolling interests portion of the
postretirement plans of $11.9 million, which had previously been included in
Accumulated Other Comprehensive Income, has been reported as a reduction in the
noncontrolling interests included in stockholders' deficit.
o. On July 31, 2009, the company completed offers to exchange its 6 7/8% senior
notes due 2010 (the 2010 Notes), its 8% senior notes due 2012 (the 2012 Notes),
its 8 1/2% senior notes due 2015 (the 2015 Notes) and its 12 1/2% senior notes
due 2016 (the 2016 Notes) in private placements for new 12 3/4% senior secured
notes due 2014 (the First Lien Notes), new 14 1/4% senior secured notes due
2015 (the Second Lien Notes and, together with First Lien Notes, the New
Secured Notes), shares of the company's common stock and cash. On that date,
the company issued approximately $385.0 million aggregate principal amount of
First Lien Notes, approximately $246.6 million aggregate principal amount of
Second Lien Notes and approximately 5.2 million shares of common stock and
paid $30.0 million in cash in exchange for approximately $235.1 million
aggregate principal amount of 2010 Notes, approximately $331.9 million
aggregate principal amount of 2012 Notes, approximately $134.0 million
aggregate principal amount of 2015 Notes, and approximately $59.4 million
aggregate principal amount of 2016 Notes. The New Secured Notes are guaranteed
by Unisys Holding Corporation, a wholly-owned Delaware corporation that
directly or indirectly holds the shares of substantially all of the company's
foreign subsidiaries, and by certain of the company's other current and future
U.S. subsidiaries. The First Lien Notes and Second Lien Notes are secured by
first-priority liens and second priority liens, respectively, (in each case,
subject to permitted prior liens) by substantially all of the company's
assets, except (i) accounts receivable that are subject to one or more
receivables facilities, (ii) real estate located outside the U.S., (iii) cash
or cash equivalents securing reimbursement obligations under letters of credit
or surety bonds and (iv) certain other excluded assets. The company recognized
a net gain of $.5 million on the exchange in "Other income (expense), net" in
the quarter ended September 30, 2009. As a result of the exchange, annual
interest expense will increase by approximately $23 million.
17
p. The company has evaluated subsequent events (events occurring after
September 30, 2009) for recognition or disclosure in these financial statements
up to October 30, 2009.
q. Financial assets with carrying values approximating fair value include cash
and cash equivalents and accounts receivable. Financial liabilities with
carrying values approximating fair value include accounts payable and other
accrued liabilities. The carrying amounts of these financial assets and
liabilities approximate fair value due to their short maturities. At September
30, 2009, the carrying amount of long-term debt, including current maturities,
approximated fair value.
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Overview
The earnings per share amounts below reflect the company's previously announced
reverse stock split applied on a retroactive basis (see note (a) of the Notes to
Consolidated Financial Statements).
The company reported significantly improved profitability and cash flow for the
first nine months of 2009 as the company's results benefited from ongoing
actions to concentrate its resources more effectively and reduce its cost base,
despite a decline in revenue.
Revenue in the first nine months of 2009 compared with the year-ago period was
impacted by weakness in global economic conditions as well as unfavorable
foreign currency translation. The company reported revenue of $3.39 billion in
the nine months ended September 30, 2009, down 14% compared with revenue of
$3.95 billion in the nine months ended September 30, 2008. Foreign currency
exchange rates had an approximately 7-percentage-point negative impact on
revenue in the first nine months of 2009. On a constant currency basis,
revenue declined 7% in the first nine months of 2009 compared to the prior-year
period.
For the nine months ended September 30, 2009, operating income increased to
$215.4 million compared with $88.5 million in the first nine months of 2008.
Operating profit percent increased to 6.4% for the first nine months of 2009
compared with 2.2% in the year-ago period. After a tax provision of $58.4
million, the company reported net income attributable to Unisys Corporation of
$74.8 million, or $1.93 per diluted share, for the first nine months of 2009.
This compared with a year-ago net loss attributable to Unisys Corporation of
$72.1 million, or a loss of $2.01 per diluted share, which included a tax
provision of $72.5 million.
Cash from operating activities increased to $181.8 million in the first nine
months of 2009 compared with $116.4 million in the same period of 2008.
Results of operations
Company results
Revenue for the quarter ended September 30, 2009 was $1.16 billion compared
with $1.31 billion for the third quarter of 2008, a decrease of 12% from the
prior year. Foreign currency fluctuations had a 5-percentage-point negative
impact on revenue in the third quarter compared with the year-ago period.
Services revenue declined 13% and Technology revenue declined 4% in the third
quarter compared with the year-ago period. U.S. revenue was down 3% in the
third quarter compared with the year-ago period, as growth in U.S. Federal
government revenue was offset by declines in commercial revenue. International
revenue decreased 18% (11% on a constant currency basis) in the three months
ended September 30, 2009 due to declines in all major regions.
18
Total gross profit margin was 26.4% in the three months ended September 30, 2009
compared with 22.2% in the three months ended September 30, 2008. The increase
in gross profit margin reflects improved cost efficiencies in services delivery,
the benefits from operating expense reductions as well as a stronger mix of
high-end enterprise server sales.
Selling, general and administrative expense in the three months ended September
30, 2009 was $163.5 million (14.1% of revenue) compared with $218.4 million
(16.6% of revenue) in the year-ago period. The decrease in selling, general
and administrative expense reflects the benefits from cost reduction actions as
well as foreign currency exchange fluctuations. During the three months ended
September 30, 2009 and 2008, the company reversed $2.4 million and $13.2
million, respectively, of previously-accrued compensation expense related to
performance-based restricted stock units due to a change in the assessment of
the achievability of the performance goals. In addition, during the three
months ended September 30, 2009, the company reversed $2.6 million of
previously-accrued share-based compensation principally related to employees
terminated in prior periods (see note (f)).
Research and development (R&D) expenses in the third quarter of 2009 were $24.3
million compared with $35.7 million in the third quarter of 2008. The decrease
in R&D expenses in 2009 compared with 2008 principally reflects changes in the
company's development model as the company has focused its investments on
software development versus hardware design.
For the third quarter of 2009, the company reported operating income of $118.0
million compared with operating income of $37.9 million in the third quarter
of 2008.
For the three months ended September 30, 2009, pension income was $5.2 million
compared with pension income of $15.0 million for the three months ended
September 30, 2008. The expense related to the company's match to the U.S.
401(k) plan for the three months ended September 30, 2009 and 2008 was zero and
$11.3 million, respectively. Effective January 1, 2009, the company match was
suspended. The company records pension income or expense, as well as other
employee-related costs such as 401(k) match, payroll taxes and medical
insurance costs, in operating income in the following income statement
categories: cost of revenue; selling, general and administrative expenses;
and research and development expenses. The amount allocated to each category
is based on where the salaries of active employees are charged.
Due to changes in estimates related to cost reduction charges, during the three
months ended September 30, 2009, $4.7 million was recorded as expense compared
with $2.0 million recorded as expense in the year-ago period.
Interest expense for the three months ended September 30, 2009 was $25.4
million compared with $21.5 million for the three months ended September 30,
2008. The increase was principally due to higher interest rates associated with
the debt issued in connection with the debt exchange discussed below.
Other income (expense), net was an expense of $3.3 million in the third quarter
of 2009, compared with expense of $.9 million in 2008, principally due to a
loss of $4.7 million on the sale of a subsidiary in the third quarter of 2009.
The company reported income before income taxes for the three months ended
September 30, 2009 of $89.3 million compared with income before taxes of $15.5
million in 2008. The provision for income taxes was $26.2 million in the third
quarter compared with a provision of $45.1 million in the year-ago period.
Included in the tax provision for the three months ended September 30, 2009 was
a benefit related to a prior period adjustment of $4.4 million. Included in
the tax provision for the three months ended September 30, 2008 was a provision
of $7.8 million for the understatement of the income tax provision for the
first and second quarters of 2008. This charge had no effect on the 2008 year
to date provision for income taxes.
The company evaluates quarterly the realizability of its deferred tax assets by
assessing its valuation allowance and by adjusting the amount of such
allowance, if necessary. The company will record a tax provision or benefit
for those international subsidiaries that do not have a full valuation
allowance against their deferred tax assets. Any profit or loss recorded for
the company's U.S. operations will have no provision or benefit associated
with it. As a result, the company's provision or benefit for taxes will vary
significantly quarter to quarter depending on the geographic distribution of
income.
19
The net income attributable to Unisys Corporation for the three months ended
September 30, 2009 was $61.1 million, or $1.48 per diluted share, compared with
a net loss attributable to Unisys Corporation of $34.7 million, or a loss of
$.96 per diluted share, for the three months ended September 30, 2008.
Revenue for the nine months ended September 30, 2009 was $3.39 billion compared
with $3.95 billion for the nine months ended September 30, 2008, a decrease of
14% from the prior year. Foreign currency fluctuations had a 7-percentage-point
negative impact on revenue in the current period compared with the year-ago
period. Services revenue declined 13% and Technology revenue declined 21% for
the nine months ended September 30, 2009 compared with the year-ago period.
U.S. revenue was down 3% in the first nine months of 2009 compared with the
year-ago period, as growth in U.S. Federal government revenue was offset by
declines in commercial revenue. International revenue decreased 23% (10% on a
constant currency basis) in the first nine months of 2009 due to declines in
all major regions.
Total gross profit margin was 23.6% in the nine months ended September 30, 2009
compared with 22.5% in the nine months ended September 30, 2008. The increase
in gross profit margin reflects the benefits from cost reduction actions.
Selling, general and administrative expense in the nine months ended September
30, 2009 was $506.3 million (14.9% of revenue) compared with $701.9 million
(17.8% of revenue) in the year-ago period. The decrease in selling, general
and administrative expense reflects the benefits from cost reduction actions
as well as foreign currency exchange fluctuations. During the nine months
ended September 30, 2009 and 2008, the company reversed $2.4 million and $13.2
million, respectively, of previously-accrued compensation expense related to
performance-based restricted stock units due to a change in the assessment of
the achievability of the performance goals. In addition, during the nine
months ended September 30, 2009, the company reversed $2.6 million of
previously-accrued share-based compensation principally related to employees
terminated in prior periods (see note (f)).
R&D expenses in the first nine months of 2009 were $76.8 million compared with
$98.6 million in the first nine months of 2008. The decrease in R&D expenses
in 2009 compared with 2008 principally reflects changes in the company's
development model as the company has focused its investments on software
development versus hardware design.
For the nine months ended September 30, 2009, the company reported operating
income of $215.4 million compared with operating income of $88.5 million for
the nine months ended September 30, 2008.
For the nine months ended September 30, 2009, pension income was $17.0 million
compared with pension income of $35.3 million for the nine months ended
September 30, 2008. The decrease in pension income in 2009 from 2008 was
principally due to lower returns on plan assets worldwide. The expense related
to the company's match to the U.S. 401(k) plan for the nine months ended
September 30, 2009 and 2008 was zero and $38.0 million, respectively.
Due to changes in estimates related to cost reduction charges, during the nine
months ended September 30, 2009, $4.7 million was recorded as income compared
with $1.2 million recorded as expense in the year-ago period. In addition,
during the nine months ended September 30, 2009, the company recorded a benefit
of $11.2 million (a $5.4 million benefit in other income, a $6.1 million
benefit in cost of revenue and an expense of $.3 million in selling, general
and administrative expense related to legal fees) relating to a change in
Brazilian law involving a gross receipt tax.
Interest expense for the nine months ended September 30, 2009 was $68.4 million
compared with $64.3 million for the nine months ended September 30, 2008. The
increase was principally due to higher interest rates associated with the debt
issued in connection with the debt exchange discussed below.
Other income (expense), net was an expense of $7.0 million for the nine months
ended September 30, 2009, compared with expense of $8.4 million for the nine
months ended September 30, 2008. The nine months ended September 30, 2009
includes income of $5.4 million related to the Brazilian law change discussed
above, a loss of $4.7 million on the sale of a subsidiary and foreign exchange
losses of $6.1 million. Included in the nine months ended September 30, 2008
were foreign exchange losses of $.8 million.
20
The company reported income before income taxes for the nine months ended
September 30, 2009 of $140.0 million compared with income of $15.8 million in
2008. The provision for income taxes was $58.4 million in the first nine
months of 2009 compared with a provision of $72.5 million in the year-ago
period. Included in the tax provision for the nine months ended September 30,
2009 was a U.S. refundable credit of $8.3 million, a foreign tax refund of
$2.7 million related to a 2008 refund claim and a benefit related to a prior
period adjustment of $5.0 million. Included in the tax provision for the nine
months ended September 30, 2008 was a $5.1 million benefit related to prior
years' intercompany royalties and a U.S. refundable credit of $4.1 million.
The net income attributable to Unisys Corporation for the nine months ended
September 30, 2009 was $74.8 million, or $1.93 per diluted share, compared with
a net loss attributable to Unisys Corporation of $72.1 million, or a loss of
$2.01 per diluted share, for the nine months ended September 30, 2008.
Segment results
The company has two business segments: Services and Technology. Revenue
classifications by segment are as follows: Services - systems integration and
consulting, outsourcing, infrastructure services and core maintenance;
Technology - enterprise-class servers and specialized technologies. The
accounting policies of each business segment are the same as those followed by
the company as a whole. Intersegment sales and transfers are priced as if the
sales or transfers were to third parties. Accordingly, the Technology segment
recognizes intersegment revenue and manufacturing profit on hardware and
software shipments to customers under Services contracts. The Services
segment, in turn, recognizes customer revenue and marketing profit on such
shipments of company hardware and software to customers. The Services segment
also includes the sale of hardware and software products sourced from third
parties that are sold to customers through the company's Services channels. In
the company's consolidated statements of income, the manufacturing costs of
products sourced from the Technology segment and sold to Services customers are
reported in cost of revenue for Services.
Also included in the Technology segment's sales and operating profit are sales
of hardware and software sold to the Services segment for internal use in
Services engagements. The amount of such profit included in operating income
of the Technology segment for the three months ended September 30, 2009 and
2008 was $1.5 million and $21.9 million, respectively. The amount for the nine
months ended September 30, 2009 and 2008 was $12.0 million and $33.1 million,
respectively. The profit on these transactions is eliminated in Corporate.
The company evaluates business segment performance on operating profit
exclusive of cost reduction charges and unusual and nonrecurring items, which
are included in Corporate. All other corporate and centrally incurred costs
are allocated to the business segments, based principally on revenue,
employees, square footage or usage.
Information by business segment for the three months ended September 30, 2009
and 2008 is presented below (in millions of dollars):
Elimi-
Total nations Services Technology
------- ------- -------- ----------
Three Months Ended
September 30, 2009
- ------------------
Customer revenue $1,159.6 $1,006.0 $ 153.6
Intersegment - $ (33.2) 1.7 31.5
-------- ------- ------- ------
Total revenue $1,159.6 $ (33.2) $1,007.7 $ 185.1
======== ======== ======== =======
Gross profit percent 26.4% 19.7% 55.2%
======== ======= ======
Operating income percent 10.2% 7.7% 21.2%
======== ======= ======
Three Months Ended
September 30, 2008
- ------------------
Customer revenue $1,312.4 $1,152.1 $ 160.3
Intersegment - $ (67.5) 4.0 63.5
-------- ------- ------- ------
Total revenue $1,312.4 $ (67.5) $1,156.1 $ 223.8
======== ======== ======= ======
Gross profit percent 22.2% 17.6% 47.5%
======== ======= ======
Operating income percent 2.9% 3.1% 11.0%
======== ======= ======
Gross profit and operating income percent are as a percent of total revenue.
21
Customer revenue by classes of similar products or services, by segment,
is presented below (in millions of dollars):
Three Months
Ended September 30
------------------- Percent
2009 2008 Change
---- ---- --------
Services
Systems integration
and consulting $ 327.3 $ 361.2 (9.4)%
Outsourcing 464.5 515.0 (9.8)%
Infrastructure services 133.7 182.1 (26.6)%
Core maintenance 80.5 93.8 (14.2)%
-------- --------
1,006.0 1,152.1 (12.7)%
Technology
Enterprise-class servers 138.8 141.3 (1.8)%
Specialized technologies 14.8 19.0 (22.1)%
-------- --------
153.6 160.3 (4.2)%
-------- --------
Total $1,159.6 $1,312.4 (11.6)%
======== ========
In the Services segment, customer revenue was $1,006.0 million for the three
months ended September 30, 2009 down 12.7% from the three months ended
September 30, 2008. Services revenue in the third quarter of 2009 when
compared with the year-ago period was impacted by continued world wide weak
demand and foreign currency exchange rates. Foreign currency translation had
a 5-percentage-point negative impact on Services revenue in the current quarter
compared with the year-ago period.
Revenue from systems integration and consulting decreased 9.4% in the three
months ended September 30, 2009 compared with the year-ago period, reflecting
lower demand for project-based services.
Outsourcing revenue decreased 9.8% in the three months September 30, 2009
compared with the year-ago period, primarily reflecting a decline in business
processing outsourcing (BPO) revenue.
Infrastructure services revenue declined 26.6% in the three months ended
September 30, 2009 compared with the year-ago period. The decline was due to
weakness in demand for network design and consulting projects, as well as the
shift of project-based infrastructure work to managed outsourcing contracts.
Core maintenance revenue declined 14.2% in the third quarter compared with the
prior-year quarter. The company expects the secular decline of core
maintenance to continue.
Services gross profit was 19.7% in the third quarter of 2009 compared with
17.6% in the year-ago period. Services operating income percent was 7.7% in
the three months ended September 30, 2009 compared with 3.1% in the three
months ended September 30, 2008. Contributing to the increase in Services
margins were the benefits from operating expense reductions as well as cost
efficiencies in services delivery.
In the Technology segment, customer revenue was $153.6 million in the September
2009 quarter compared with $160.3 million in the year-ago period for a decrease
of 4.2%. Foreign currency translation had a negative impact of approximately 1-
percentage point on Technology revenue in the September 2009 quarter compared
with the prior-year period.
Revenue from the company's enterprise-class servers, which includes the
company's ClearPath and ES7000 product families, decreased 1.8% for the three
months ended September 30, 2009 compared with the three months ended September
30, 2008. Revenue in the current quarter benefited from a number of high-end
enterprise server deals that were closed; however, the company expects the
secular decline in the enterprise-class server market to continue.
Revenue from specialized technologies, which includes third-party technology
products and the company's payment systems products, decreased $4.2 million for
the three months ended September 30, 2009 compared with the prior year period,
principally due to a decline in the company's payment systems products.
Technology gross profit was 55.2% in the current quarter compared with 47.5% in
the year-ago quarter. Technology operating income percent was 21.2% in the
three months ended September 30, 2009 compared with 11.0% in the three months
ended September 30, 2008. Contributing to the increase in Technology margins
was a stronger mix of high-end enterprise server sales as well as the benefits
from cost reduction actions.
22
Information by business segment for the nine months ended September 30, 2009
and 2008 is presented below (in millions of dollars):
Elimi-
Total nations Services Technology
------- ------- -------- ----------
Nine Months Ended
September 30, 2009
- ------------------
Customer revenue $3,388.2 $3,019.8 $ 368.4
Intersegment - $(118.4) 5.0 113.4
-------- ------- ------- ------
Total revenue $3,388.2 $(118.4) $3,024.8 $ 481.8
======== ======= ======== =======
Gross profit percent 23.6% 19.0% 43.8%
======== ======= ======
Operating income percent 6.4% 6.1% 2.8%
======== ======= ======
Nine Months Ended
September 30, 2008
- ------------------
Customer revenue $3,953.7 $3,486.2 $ 467.5
Intersegment - $(162.2) 9.4 152.8
-------- ------- ------- ------
Total revenue $3,953.7 $(162.2) $3,495.6 $ 620.3
======== ======== ======== ======
Gross profit percent 22.5% 18.4% 43.4%
======== ======= ======
Operating income percent 2.2% 2.9% 3.1%
======== ======= ======
Gross profit and operating income percent are as a percent of total revenue.
Customer revenue by classes of similar products or services, by segment, is
presented below (in millions of dollars):
Nine Months
Ended September 30
------------------- Percent
2009 2008 Change
---- ---- --------
Services
Systems integration
and consulting $1,018.5 $1,094.7 (7.0)%
Outsourcing 1,347.8 1,529.7 (11.9)%
Infrastructure services 419.7 575.7 (27.1)%
Core maintenance 233.8 286.1 (18.3)%
-------- --------
3,019.8 3,486.2 (13.4)%
Technology
Enterprise-class servers 295.5 384.7 (23.2)%
Specialized technologies 72.9 82.8 (12.0)%
-------- --------
368.4 467.5 (21.2)%
-------- --------
Total $3,388.2 $3,953.7 (14.3)%
======== ========
In the Services segment, customer revenue was $3,019.8 million for the nine
months ended September 30, 2009 down 13.4% from the nine months ended September
30, 2008. Services revenue in the first nine months of 2009 when compared with
the year-ago period was impacted by continued world wide weak demand and
foreign currency exchange rates. Foreign currency translation had an 8-
percentage-point negative impact on Services revenue in the first nine months
of 2009 compared with the year-ago period.
Revenue from systems integration and consulting decreased 7.0% from $1,094.7
million for the nine months ended September 30, 2008 to $1,018.5 million for
the nine months ended September 30, 2009.
23
Outsourcing revenue decreased 11.9% for the nine months September 30, 2009
compared with the year-ago period, primarily reflecting a decline in BPO
revenue.
Infrastructure services revenue declined 27.1% for the nine months ended
September 30, 2009 compared with the year-ago period. The decline was due to
weakness in demand for network design and consulting projects, as well as the
shift of project-based infrastructure work to managed outsourcing contracts.
Core maintenance revenue declined 18.3% in the nine months ended September 30,
2009 compared with the prior-year period. The company expects the secular
decline of core maintenance to continue.
Services gross profit was 19.0% for the nine months ended September 30, 2009
compared with 18.4% in the year-ago period. Services operating income percent
was 6.1% for the nine months ended September 30, 2009 compared with 2.9% for
the nine months ended September 30, 2008. Contributing to the increase in
Services operating profit margin were benefits from cost reduction actions.
In the Technology segment, customer revenue was $368.4 million in the nine
months ended September 30, 2009 compared with $467.5 million in the year-ago
period for a decrease of 21.2%. Foreign currency translation had a negative
impact of approximately 4-percentage points on Technology revenue in the first
nine months of 2009 compared with the prior-year period. The decline in
Technology revenue in 2009 reflects lower sales of high-end mainframe systems,
primarily in Europe and Japan, as clients deferred planned purchases in a weak
economic environment, as well as the expiration of a royalty from Nihon Unisys
Limited (NUL). The company had recognized revenue of $18.8 million per quarter
($8.5 million in enterprise-class servers and $10.3 million in specialized
technologies) under this royalty agreement over the three-year period ended
March 31, 2008. The expiration of this royalty from NUL contributed about 4
percentage points of the technology segment's 21% decline in revenue.
Revenue from the company's enterprise-class servers, which includes the
company's ClearPath and ES7000 product families, decreased 23.2% for the nine
months ended September 30, 2009 compared with the nine months ended September
30, 2008. Technology sales during the period slowed as clients tightened
spending on information technology projects due to economic concerns. Also
contributing to the decrease in revenue was the secular decline in the
enterprise-class server market, which the company expects to continue.
Revenue from specialized technologies, which includes third-party technology
products and the company's payment systems products, decreased 12.0% for the
nine months ended September 30, 2009 compared with the nine months ended
September 30, 2008.
Technology gross profit was 43.8% in the first nine months of 2009 compared
with 43.4% in the year-ago period. Technology operating income percent was
2.8% for the nine months ended September 30, 2009 compared with 3.1% for the
nine months ended September 30, 2008.
New accounting pronouncements
See note (k) of the Notes to Consolidated Financial Statements for a full
description of recent accounting pronouncements, including the expected dates
of adoption and estimated effects on results of operations and financial
condition.
Financial condition
Cash and cash equivalents at September 30, 2009 were $473.6 million compared
with $544.0 million at December 31, 2008.
The company's principal sources of liquidity are cash on hand, cash from
operations and its U.S. trade accounts receivable facility, which is discussed
below. The company's revolving credit facility, which provided for loans and
letters of credit up to an aggregate of $275 million, expired on May 31, 2009.
As discussed below, on July 31, 2009 the company closed private offers to
exchange its outstanding senior notes, for new senior secured notes due in
2014, new senior secured notes due in 2015, common stock and $30 million of
cash. The company also utilizes surety bonds, letters of credit, foreign
exchange derivatives and other financial instruments to conduct its business.
The company's anticipated future cash expenditures include contributions to its
defined benefit pension plans and payments in respect of cost-reduction actions.
In addition to actions to reduce its cost structure, the company will continue
to focus on working capital management and to tightly manage capital
expenditures. Given these actions and its cash on hand at September 30, 2009,
the company believes that it will have adequate sources of liquidity to meet
its expected near-term cash requirements.
24
During the nine months ended September 30, 2009, cash provided by operations
was $181.8 million compared with cash provided of $116.4 million for the nine
months ended September 30, 2008. Cash expenditures for the nine months ended
September 30, 2009 related to cost-reduction actions (which are included in
operating activities) were approximately $56.2 million compared with $49.0
million for the prior-year period. Cash expenditures for prior year cost-
reduction actions are expected to be approximately $12.0 million for the
remainder of 2009, resulting in an expected cash expenditure of approximately
$68.2 million in 2009 compared with $60.4 million in 2008.
Cash used for investing activities for the nine months ended September 30, 2009
was $231.7 million compared with cash usage of $226.4 million during the nine
months ended September 30, 2008. Items affecting cash used for investing
activities were the following: Net proceeds from investments were $1.9 million
for the nine months ended September 30, 2009 compared with net purchases of
$9.8 million in the prior-year period. Proceeds from investments and purchases
of investments represent derivative financial instruments used to manage the
company's currency exposure to market risks from changes in foreign currency
exchange rates. The amount of proceeds and purchases of investments has
declined significantly from last year, principally reflecting the fact that in
the fourth quarter of 2008, the company capitalized certain intercompany
balances for foreign subsidiaries which reduced the need for these derivatives.
During the nine months ended September 30, 2009, the company used $82.5
million of cash to collateralize letters of credit. In addition, in the
current nine month period, the investment in marketable software was $43.7
million compared with $65.9 million in the year-ago period, capital additions
of properties were $32.1 million in 2009 compared with $51.8 million in 2008
and capital additions of outsourcing assets were $73.4 million in 2009
compared with $96.6 million in 2008.
Cash used for financing activities during the nine months ended September 30,
2009 was $45.4 million compared with $200.9 million of cash used during the
nine months ended September 30, 2008. The cash usage in the current nine month
period of $45.4 million relates to the debt exchange discussed below. The
prior-year period cash usage was principally due to the January 2008
redemption, at par, of all $200 million of the company's 7 7/8% senior notes
due April 1, 2008.
At September 30, 2009, total debt was $911.0 million, a decrease of $149.6
million from December 31, 2008, principally due to the debt exchange discussed
below.
On July 31, 2009, the company completed offers to exchange its 6 7/8% senior
notes due 2010 (the 2010 Notes), its 8% senior notes due 2012 (the 2012 Notes),
its 8 1/2% senior notes due 2015 (the 2015 Notes) and its 12 1/2% senior notes
due 2016 (the 2016 Notes) in private placements for new 12 3/4% senior secured
notes due 2014 (the First Lien Notes), new 14 1/4% senior secured notes due 2015
(the Second Lien Notes and, together with First Lien Notes, the New Secured
Notes), shares of the company's common stock and cash. On that date, the
company issued approximately $385.0 million aggregate principal amount of First
Lien Notes, approximately $246.6 million aggregate principal amount of Second
Lien Notes and approximately 5.2 million shares of common stock and paid $30.0
million in cash in exchange for approximately $235.1 million aggregate
principal amount of 2010 Notes, approximately $331.9 million aggregate
principal amount of 2012 Notes, approximately $134.0 million aggregate
principal amount of 2015 Notes, and approximately $59.4 million aggregate
principal amount of 2016 Notes. The New Secured Notes are guaranteed by Unisys
Holding Corporation, a wholly-owned Delaware corporation that directly or
indirectly holds the shares of substantially all of the company's foreign
subsidiaries, and by certain of the company's other current and future U.S.
subsidiaries. The First Lien Notes and Second Lien Notes are secured by first-
priority liens and second priority liens, respectively, (in each case, subject
to permitted prior liens) by substantially all of the company's assets, except
(i) accounts receivable that are subject to one or more receivables facilities,
(ii) real estate located outside the U.S., (iii) cash or cash equivalents
securing reimbursement obligations under letters of credit or surety bonds and
(iv) certain other excluded assets. The company recognized a net gain of $.5
million on the exchange in "Other income (expense), net" in the quarter ended
September 30, 2009. As a result of the exchange, annual interest expense will
increase by approximately $23 million.
25
On May 16, 2008, the company entered into a three-year, U.S. trade accounts
receivable facility. Under this facility, the company has agreed to sell, on
an ongoing basis, through Unisys Funding Corporation I, a wholly owned
subsidiary, up to $150 million of interests in eligible U.S. trade accounts
receivable. Under the facility, receivables are sold at a discount that
reflects, among other things, a yield based on LIBOR subject to a minimum rate.
The facility includes customary representations and warranties, including no
material adverse change in the company's business, assets, liabilities,
operations or financial condition. It also requires the company to maintain a
minimum fixed charge coverage ratio and requires the maintenance of certain
ratios related to the sold receivables. The facility will be subject to early
termination if, as of February 28, 2010, the 2010 Notes have not been
refinanced or extended to a date later than May 16, 2011. Other termination
events include failure to perform covenants, materially incorrect
representations and warranties, change of control and default under debt
aggregating at least $25 million. At September 30, 2009 and December 31, 2008,
the company had sold $118 million and $141 million, respectively, of eligible
receivables.
In addition, the company and certain international subsidiaries have access to
uncommitted lines of credit from various banks.
At September 30, 2009, the company has met all covenants and conditions under
its various lending and funding agreements. The company expects to continue to
meet these covenants and conditions.
The company currently expects to make cash contributions of approximately $100-
$105 million to its worldwide, primarily non-U.S., defined benefit pension plans
in 2009, of which $55.8 million has been made as of September 30, 2009. In
accordance with regulations governing contributions to U.S. defined benefit
pension plans, the company is not required to fund its U.S. qualified defined
benefit pension plan in 2009.
The company may, from time to time, redeem, tender for, or repurchase its
securities in the open market or in privately negotiated transactions depending
upon availability, market conditions and other factors. The company has on
file with the Securities and Exchange Commission an effective registration
statement covering $1.1 billion of debt or equity securities, which enables the
company to be prepared for future market opportunities.
Factors that may affect future results
From time to time, the company provides information containing "forward-looking"
statements, as defined in the Private Securities Litigation Reform Act of 1995.
Forward-looking statements provide current expectations of future events and
include any statement that does not directly relate to any historical or
current fact. Words such as "anticipates," "believes," "expects," "intends,"
"plans," "projects" and similar expressions may identify such forward-looking
statements. All forward-looking statements rely on assumptions and are subject
to risks, uncertainties and other factors that could cause the company's actual
results to differ materially from expectations. Factors that could affect
future results include, but are not limited to, those discussed below. Any
forward-looking statement speaks only as of the date on which that statement is
made. The company assumes no obligation to update any forward-looking statement
to reflect events or circumstances that occur after the date on which the
statement is made.
Factors that could affect future results include the following:
THE COMPANY'S BUSINESS IS AFFECTED BY THE ECONOMIC AND BUSINESS ENVIRONMENT.
The company's recent financial results have been impacted by the global
economic slowdown. The company has seen this slowdown particularly in its
financial services business but also in other key commercial industries, as
clients reacted to economic uncertainties by reducing information technology
spending. Decreased demand for the company's services and products has
impacted its revenue and profit margins. If current economic conditions
continue or worsen, including if the company's customers are unable to obtain
financing to purchase the company's services and products due to tight credit
conditions, the company could see further reductions in demand and increased
pressure on revenue and profit margins. The company could also see a further
consolidation of firms in the financial services industry, which could also
result in a decrease in demand. In addition, during the recent period of
disruption in the financial markets, the market price for the company's common
shares has been volatile. The company's business could also be affected by
acts of war, terrorism or natural disasters. Current world tensions could
escalate, and this could have unpredictable consequences on the world economy
and on the company's business.
26
THE COMPANY'S FUTURE RESULTS MAY DEPEND ON ITS ABILITY TO ACCESS EXTERNAL
CREDIT MARKETS. The capital and credit markets have been experiencing extreme
volatility and disruption. In addition, the commercial lending market has
contracted, with limited new loan originations or refinancings taking place.
Based on the current lending environment, the company expects to have
difficulty accessing significant additional capital in the credit markets on
acceptable terms. Given tight credit markets, along with the company's credit
rating, the company did not replace its revolving credit facility that expired
on May 31, 2009. Also, the company's ability to redeem or refinance the
senior notes that remain outstanding after the closing of the exchange offers
could be affected by credit market conditions. The turmoil and volatility in
financial markets may also impact the company's ability to utilize surety
bonds, letters of credit, foreign exchange derivatives and other financial
instruments the company uses to conduct its business. Although the company
intends to use cash on hand to address its liquidity needs, its ability to do
so assumes that its operations will continue to generate sufficient cash and
that its cash requirements will not materially exceed current estimates.
THE COMPANY HAS SIGNIFICANT PENSION OBLIGATIONS. The company has unfunded
obligations under its U.S. and non-U.S. defined benefit pension plans. The
company expects to make cash contributions of approximately $100-$105 million
to its worldwide, primarily non-U.S., defined benefit pension plans in 2009.
In accordance with regulations governing contributions to U.S. defined benefit
pension plans, the company is not required to fund its U.S. qualified defined
benefit pension plan in 2009. In addition, under IRS regulations issued in
March 2009, the company currently believes that it will not be required to
fund its U.S. qualified defined benefit pension plan in 2010. A further
deterioration in the value of the company's worldwide defined benefit pension
plan assets could require the company to make larger cash contributions to its
defined benefit pension plans in the future. In addition, the funding of plan
deficits over a shorter period of time than currently anticipated could result
in making cash contributions to these plans on a more accelerated basis.
Either of these events would reduce the cash available for working capital and
other corporate uses and may have an adverse impact on the company's
operations, financial condition and liquidity.
THE COMPANY'S FUTURE RESULTS WILL DEPEND ON THE SUCCESS OF ITS TURNAROUND
PROGRAM. Over the past several years, the company has implemented and is
continuing to implement, significant cost-reduction measures intended to
achieve profitability. The company has incurred significant cost reduction
charges in connection with these efforts. Future results will depend on the
success of these efforts as well as on the success of the company's program to
focus its global resources and simplify its business structure. This program
is based on various assumptions, including assumptions regarding market segment
growth, client demand, and the proper skill set of and training for sales and
marketing management and personnel, all of which are subject to change.
Furthermore, the company's institutional stockholders may attempt to influence
these strategies.
THE COMPANY FACES AGGRESSIVE COMPETITION IN THE INFORMATION SERVICES AND
TECHNOLOGY MARKETPLACE. The information services and technology markets in
which the company operates include a large number of companies vying for
customers and market share both domestically and internationally. The company's
competitors include consulting and other professional services firms, systems
integrators, outsourcing providers, infrastructure services providers, computer
hardware manufacturers and software providers. Some of the company's
competitors may develop competing products and services that offer better price-
performance or that reach the market in advance of the company's offerings.
Some competitors also have or may develop greater financial and other resources
than the company, with enhanced ability to compete for market share, in some
instances through significant economic incentives to secure contracts. Some
also may be better able to compete for skilled professionals. Any of these
factors could lead to reduced demand for the company's products and services
and could have an adverse effect on the company's business. Future results will
depend on the company's ability to mitigate the effects of aggressive
competition on revenues, pricing and margins and on the company's ability to
attract and retain talented people.
THE COMPANY FACES VOLATILITY AND RAPID TECHNOLOGICAL CHANGE IN ITS INDUSTRY.
The company operates in a highly volatile industry characterized by rapid
technological change, evolving technology standards, short product life cycles
and continually changing customer demand patterns. Future success will depend
in part on the company's ability to anticipate and respond to these market
trends and to design, develop, introduce, deliver or obtain new and innovative
products and services on a timely and cost-effective basis. The company may not
be successful in anticipating or responding to changes in technology, industry
standards or customer preferences, and the market may not demand or accept its
services and product offerings. In addition, products and services developed
by competitors may make the company's offerings less competitive.
27
THE COMPANY'S FUTURE RESULTS WILL DEPEND ON ITS ABILITY TO RETAIN SIGNIFICANT
CLIENTS. The company has a number of significant long-term contracts with
clients, including governmental entities, and its future success will depend,
in part, on retaining its relationships with these clients. The company could
lose clients for such reasons as contract expiration, conversion to a competing
service provider, disputes with clients or a decision to in-source services,
including for contracts with governmental entities as part of the rebid
process. The company could also lose clients as a result of their merger,
acquisition or business failure. The company may not be able to replace the
revenue and earnings from any such lost client.
THE COMPANY'S FUTURE RESULTS WILL DEPEND IN PART ON ITS ABILITY TO GROW
OUTSOURCING. The company's outsourcing contracts are multiyear engagements
under which the company takes over management of a client's technology
operations, business processes or networks. In a number of these arrangements,
the company hires certain of its clients' employees and may become responsible
for the related employee obligations, such as pension and severance commitments.
In addition, system development activity on outsourcing contracts may require
the company to make significant upfront investments. The company will need to
have available sufficient financial resources in order to take on these
obligations and make these investments.
Recoverability of outsourcing assets is dependent on various factors, including
the timely completion and ultimate cost of the outsourcing solution, and
realization of expected profitability of existing outsourcing contracts. These
risks could result in an impairment of a portion of the associated assets,
which are tested for recoverability quarterly.
As long-term relationships, outsourcing contracts provide a base of recurring
revenue. However, outsourcing contracts are highly complex and can involve the
design, development, implementation and operation of new solutions and the
transitioning of clients from their existing business processes to the new
environment. In the early phases of these contracts, gross margins may be
lower than in later years when an integrated solution has been implemented,
the duplicate costs of transitioning from the old to the new system have been
eliminated and the work force and facilities have been rationalized for
efficient operations. Future results will depend on the company's ability to
effectively and timely complete these implementations, transitions and
rationalizations.
FUTURE RESULTS WILL ALSO DEPEND IN PART ON THE COMPANY'S ABILITY TO DRIVE
PROFITABLE GROWTH IN CONSULTING AND SYSTEMS INTEGRATION. The company's ability
to grow profitably in this business will depend on the level of demand for
systems integration projects and the portfolio of solutions the company offers
for specific industries. It will also depend on an improvement in the
utilization of services delivery personnel and on the company's ability to work
through disruptions in this business related to the turnaround program. In
addition, profit margins in this business are largely a function of the rates
the company is able to charge for services and the chargeability of its
professionals. If the company is unable to attain sufficient rates and
chargeability for its professionals, profit margins will suffer. The rates the
company is able to charge for services are affected by a number of factors,
including clients' perception of the company's ability to add value through
its services; introduction of new services or products by the company or its
competitors; pricing policies of competitors; and general economic conditions.
Chargeability is also affected by a number of factors, including the company's
ability to transition employees from completed projects to new engagements, and
its ability to forecast demand for services and thereby maintain an appropriate
headcount.
FUTURE RESULTS WILL ALSO DEPEND, IN PART, ON MARKET DEMAND FOR THE COMPANY'S
HIGH-END ENTERPRISE SERVERS AND MAINTENANCE ON THESE SERVERS. In the company's
technology business, high-end enterprise servers and maintenance on these
servers continue to experience secular revenue declines. The company continues
to apply its resources to develop value-added software capabilities and
optimized solutions for these server platforms which provide competitive
differentiation. Future results will depend, in part, on customer acceptance
of ClearPath systems and the company's ability to maintain its installed base
for ClearPath and to develop next-generation ClearPath products that are
purchased by the installed base. Future results of the technology business
will also depend, in part, on the successful execution of the company's
arrangements with NEC.
28
THE COMPANY'S CONTRACTS WITH U.S. GOVERNMENTAL AGENCIES MAY BE SUBJECT TO
AUDITS, CRIMINAL PENALTIES, SANCTIONS AND OTHER EXPENSES AND FINES. The company
frequently enters into contracts with governmental entities. U.S. government
agencies, including the Defense Contract Audit Agency and the Department of
Labor, routinely audit government contractors. These agencies review a
contractor's performance under its contracts, cost structure and compliance
with applicable laws, regulations and standards. The U.S. government also may
review the adequacy of, and a contractor's compliance with contract terms and
conditions, its systems and policies, including the contractor's purchasing,
property, estimating, billing, accounting, compensation and management
information systems. Any costs found to be overcharged or improperly allocated
to a specific contract or any amounts improperly billed for products or
services will be subject to reimbursement to the government. If an audit
uncovers improper or illegal activities, the company may be subject to civil
and criminal penalties and administrative sanctions, including termination of
contracts, forfeiture of profits, suspension of payments, fines and suspension
or prohibition from doing business with the U.S. government.
THE COMPANY'S CONTRACTS MAY NOT BE AS PROFITABLE AS EXPECTED OR PROVIDE THE
EXPECTED LEVEL OF REVENUES. A number of the company's long-term contracts for
infrastructure services, outsourcing, help desk and similar services do not
provide for minimum transaction volumes. As a result, revenue levels are not
guaranteed. In addition, some of these contracts may permit customer
termination or may impose other penalties if the company does not meet the
performance levels specified in the contracts.
The company's contracts with governmental entities are subject to the
availability of appropriated funds. These contracts also contain provisions
allowing the governmental entity to terminate the contract at the governmental
entity's discretion before the end of the contract's term. In addition, if the
company's performance is unacceptable to the customer under a government
contract, the government retains the right to pursue remedies under the
affected contract, which remedies could include termination.
Certain of the company's outsourcing agreements require that the company's
prices be benchmarked and provide for a downward adjustment to those prices if
the pricing for similar services in the market has changed. As a result,
anticipated revenues from these contracts may decline.
Some of the company's systems integration contracts are fixed-price contracts
under which the company assumes the risk for delivery of the contracted services
and products at an agreed-upon fixed price. At times the company has
experienced problems in performing some of these fixed-price contracts on a
profitable basis and has provided periodically for adjustments to the estimated
cost to complete them. Future results will depend on the company's ability to
perform these services contracts profitably.
THE COMPANY MAY FACE DAMAGE TO ITS REPUTATION OR LEGAL LIABILITY IF ITS CLIENTS
ARE NOT SATISFIED WITH ITS SERVICES OR PRODUCTS. The success of the company's
business is dependent on strong, long-term client relationships and on its
reputation for responsiveness and quality. As a result, if a client is not
satisfied with the company's services or products, its reputation could be
damaged and its business adversely affected. Allegations by private litigants
or regulators of improper conduct, as well as negative publicity and press
speculation about the company, whatever the outcome and whether or not valid,
may harm its reputation. In addition to harm to reputation, if the company
fails to meet its contractual obligations, it could be subject to legal
liability, which could adversely affect its business, operating results and
financial condition.
FUTURE RESULTS WILL DEPEND IN PART ON THE PERFORMANCE AND CAPABILITIES OF THIRD
PARTIES. The company has commercial relationships with suppliers, channel
partners and other parties that have complementary products, services or
skills. Future results will depend, in part, on the performance and capabilities
of these third parties, on the ability of external suppliers to deliver
components at reasonable prices and in a timely manner, and on the financial
condition of, and the company's relationship with, distributors and other
indirect channel partners.
29
THE COMPANY IS SUBJECT TO THE RISKS OF DOING BUSINESS INTERNATIONALLY. More
than half of the company's total revenue is derived from international
operations. The risks of doing business internationally include foreign
currency exchange rate fluctuations, changes in political or economic
conditions, trade protection measures, import or export licensing requirements,
multiple and possibly overlapping and conflicting tax laws, new tax
legislation, weaker intellectual property protections in some jurisdictions
and additional legal and regulatory compliance requirements applicable to
businesses that operate internationally, including the Foreign Corrupt
Practices Act and non-U.S. laws and regulations.
THE COMPANY COULD FACE BUSINESS AND FINANCIAL RISK IN IMPLEMENTING FUTURE
DISPOSITIONS OR ACQUISITIONS. As part of the company's business strategy, it
may from time to time consider disposing of existing technologies, products and
businesses that may no longer be in alignment with its strategic direction,
including transactions of a material size or acquiring complementary
technologies, products and businesses. Potential risks with respect to
dispositions include difficulty finding buyers or alternative exit strategies
on acceptable terms in a timely manner; potential loss of employees; and
dispositions at unfavorable prices or on unfavorable terms, including relating
to retained liabilities. Any acquisitions may result in the incurrence of
substantial additional indebtedness or contingent liabilities. Acquisitions
could also result in potentially dilutive issuances of equity securities and an
increase in amortization expenses related to intangible assets. Additional
potential risks associated with acquisitions include integration difficulties;
difficulties in maintaining or enhancing the profitability of any acquired
business; risks of entering markets in which the company has no or limited
prior experience; potential loss of employees or failure to maintain or renew
any contracts of any acquired business; and expenses of any undiscovered or
potential liabilities of the acquired product or business, including relating
to employee benefits contribution obligations or environmental requirements.
Further, with respect to both dispositions and acquisitions, management's
attention could be diverted from other business concerns. Current adverse
credit conditions could also affect the company's ability to consummate
divestments or acquisitions. The risks associated with dispositions and
acquisitions could have a material adverse effect upon the company's business,
financial condition and results of operations. There can be no assurance that
the company will be successful in consummating future dispositions or
acquisitions on favorable terms or at all.
THE COMPANY'S SERVICES OR PRODUCTS MAY INFRINGE UPON THE INTELLECTUAL PROPERTY
RIGHTS OF OTHERS. The company cannot be sure that its services and products do
not infringe on the intellectual property rights of third parties, and it may
have infringement claims asserted against it or against its clients. These
claims could cost the company money, prevent it from offering some services or
products, or damage its reputation.
PENDING LITIGATION COULD AFFECT THE COMPANY'S RESULTS OF OPERATIONS OR CASH
FLOW. There are various lawsuits, claims, investigations and proceedings that
have been brought or asserted against the company, which arise in the ordinary
course of business, including actions with respect to commercial and government
contracts, labor and employment, employee benefits, environmental matters and
intellectual property. See note (k) of the Notes to Consolidated Financial
Statements for more information on litigation. The company believes that it has
valid defenses with respect to legal matters pending against it. Litigation is
inherently unpredictable, however, and it is possible that the company's
results of operations or cash flow could be affected in any particular period
by the resolution of one or more of the legal matters pending against it.
30
Item 3. Quantitative and Qualitative Disclosures About Market Risk
- ------------------------------------------------------------------
There has been no material change in the company's assessment of its
sensitivity to market risk since its disclosure in its Annual Report on Form 10-
K for the fiscal year ended December 31, 2008.
Item 4. Controls and Procedures
- --------------------------------
The Company's management, with the participation of the Company's Chief
Executive Officer and Chief Financial Officer, has evaluated the effectiveness
of the Company's disclosure controls and procedures as of September 30, 2009.
Based on this evaluation, the Company's Chief Executive Officer and Chief
Financial Officer concluded that the Company's disclosure controls and
procedures were effective for gathering, analyzing and disclosing the
information the Company is required to disclose in the reports it files under
the Securities Exchange Act of 1934, within the time periods specified in the
SEC's rules and forms. Such evaluation did not identify any change in the
Company's internal control over financial reporting that occurred during the
quarter ended September 30, 2009 that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over financial
reporting.
Part II - OTHER INFORMATION
- ------- -----------------
Item 1 Legal Proceedings
- ------- -----------------
Information with respect to litigation is set forth in note (l) of the Notes to
Consolidated Financial statements, and such information is incorporated herein
by reference.
Item 1A. Risk Factors
- ------- ------------
See "Factors that may affect future results" in Management's Discussion and
Analysis of Financial Condition and Results of Operations for a discussion of
risk factors.
Item 6. Exhibits
- ------- --------
(a) Exhibits
See Exhibit Index
31
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNISYS CORPORATION
Date: October 30, 2009 By: /s/ Janet Brutschea Haugen
-----------------------------
Janet Brutschea Haugen
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
By: /s/ Scott Hurley
----------------------
Scott Hurley
Vice President and
Corporate Controller
(Chief Accounting Officer)
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
3.1 Restated Certificate of Incorporation of Unisys Corporation
(incorporated by reference to Exhibit 3.1 to the registrant's Quarterly
Report on Form 10-Q for the quarterly period ended September 30, 1999)
3.2 Certificate of Amendment to Restated Certificate of Incorporation of
Unisys Corporation (incorporated by reference to Exhibit 3.1 to the
registrant's Current Report on Form 8-K dated October 23, 2009).
3.2 Bylaws of Unisys Corporation, as amended through December 6, 2007
(incorporated by reference to Exhibit 3 to the registrant's Current
Report on Form 8-K dated December 6, 2007)
4.1 Indenture, dated as of July 31, 2009, among Unisys Corporation, the
Subsidiary Guarantors named therein and Deutsche Bank Trust Company
Americas, as trustee, including the form of 12 3/4% Senior Secured
Notes due 2014 (incorporated by reference to Exhibit 4.1 to the
registrant's Current Report on Form 8-K dated July 31, 2009).
4.2 Indenture, dated as of July 31, 2009, among Unisys Corporation, the
Subsidiary Guarantors named therein and Deutsche Bank Trust Company
Americas, as trustee, including the form of 14 1/4% Senior Secured
Notes due 2015.
4.3 Second Supplemental Indenture, dated as of July 30, 2009, between
Unisys Corporation and HSBC Bank USA, National Association, as trustee
(incorporated by reference to Exhibit 4.3 to the registrant's Current
Report on Form 8-K dated July 31, 2009).
10.1 Collateral Trust Agreement, dated as of July 31, 2009, among Unisys
Corporation, the Subsidiary Guarantors named therein and Deutsche Bank
Trust Company Americas, as collateral trustee (incorporated by
reference to Exhibit 10.1 to the registrant's Current Report on Form
8-K dated July 31, 2009).
10.2 Priority Lien Pledge and Security Agreement, dated as of July 31, 2009,
among Unisys Corporation, the Subsidiary Guarantors named therein and
Deutsche Bank Trust Company Americas, as collateral trustee, including
forms of trademark, copyright and patent security agreements
(incorporated by reference to Exhibit 10.2 to the registrant's Current
Report on Form 8-K dated July 31, 2009).
10.3 Junior Lien Pledge and Security Agreement, dated as of July 31, 2009,
among Unisys Corporation, the Subsidiary Guarantors named therein and
Deutsche Bank Trust Company Americas, as collateral trustee, including
forms of trademark, copyright and patent security agreements
(incorporated by reference to Exhibit 10.3 to the registrant's Current
Report on Form 8-K dated July 31, 2009).
10.4 Registration Rights Agreement, dated as of July 31, 2009, among Unisys
Corporation, Goldman, Sachs & Co., Banc of America Securities LLC, and
Deutsche Bank Securities Inc.12 (incorporated by reference to Exhibit
10.4 to the registrant's Current Report on Form 8-K dated July 31,
2009).
12 Statement of Computation of Ratio of Earnings to Fixed Charges
31.1 Certification of J. Edward Coleman required by Rule 13a-14(a)
or Rule 15d-14(a)
31.2 Certification of Janet Brutschea Haugen required by Rule 13a-14(a)
or Rule 15d-14(a)
32.1 Certification of J. Edward Coleman required by Rule 13a-14(b)
or Rule 15d-14(b) and Section 906 of the Sarbanes-Oxley Act of 2002,
18 U.S.C. Section 1350
32.2 Certification of Janet Brutschea Haugen required by Rule 13a-14(b)
or Rule 15d-14(b) and Section 906 of the Sarbanes-Oxley Act of 2002,
18 U.S.C. Section 1350
UNISYS CORPORATION
AND EACH OF THE GUARANTORS PARTY HERETO
14 1/4% SENIOR SECURED NOTES DUE 2015
INDENTURE
DATED AS OF JULY 31, 2009
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions. 1
Section 1.02 Other Definitions. 33
Section 1.03 [Intentionally Omitted]. 34
Section 1.04 Rules of Construction. 34
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating. 34
Section 2.02 Execution and Authentication. 35
Section 2.03 Registrar and Paying Agent. 35
Section 2.04 Paying Agent to Hold Money in Trust. 36
Section 2.05 Holder Lists. 36
Section 2.06 Transfer and Exchange. 36
Section 2.07 Replacement Notes. 46
Section 2.08 Outstanding Notes. 46
Section 2.09 Treasury Notes. 46
Section 2.10 Temporary Notes. 47
Section 2.11 Cancellation. 47
Section 2.12 Defaulted Interest. 47
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee. 47
Section 3.02 Selection of Notes to Be Redeemed or Purchased. 48
Section 3.03 Notice of Redemption. 48
Section 3.04 Effect of Notice of Redemption. 49
Section 3.05 Deposit of Redemption or Purchase Price. 49
Section 3.06 Notes Redeemed or Purchased in Part. 50
Section 3.07 Optional Redemption. 50
Section 3.08 Mandatory Redemption. 51
Section 3.09 Offer to Purchase by Application of Excess Proceeds. 51
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes. 52
Section 4.02 Maintenance of Office or Agency. 53
Section 4.03 Reports. 53
Section 4.04 Compliance Certificate. 54
Section 4.05 Taxes. 54
Section 4.06 Stay, Extension and Usury Laws. 54
Section 4.07 Restricted Payments. 54
Section 4.08 Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries. 58
Section 4.09 Incurrence of Indebtedness and Issuance
of Preferred Stock. 59
Section 4.10 Asset Sales. 65
Section 4.11 Transactions with Affiliates. 68
Section 4.12 Liens. 70
Section 4.13 [Intentionally Omitted]. 70
Section 4.14 Corporate Existence. 70
Section 4.15 Offer to Repurchase Upon Change of Control. 70
Section 4.16 Additional Note Guarantees. 71
Section 4.17 Designation of Restricted and Unrestricted
Subsidiaries. 71
Section 4.18 Changes in Covenants When Notes Rated
Investment Grade. 72
Section 4.19 Rights of Notes Relative to Other Series
of Secured Debt 72
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of Assets. 73
Section 5.02 Successor Corporation Substituted. 74
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. 74
Section 6.02 Acceleration. 77
Section 6.03 Other Remedies. 77
Section 6.04 Waiver of Past Defaults. 77
Section 6.05 Control by Majority. 78
Section 6.06 Limitation on Suits. 78
Section 6.07 Rights of Holders of Notes to Receive Payment. 78
Section 6.08 Collection Suit by Trustee. 78
Section 6.09 Trustee May File Proofs of Claim. 79
Section 6.10 Priorities. 79
Section 6.11 Undertaking for Costs. 79
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee. 80
Section 7.02 Rights of Trustee. 81
Section 7.03 Individual Rights of Trustee. 81
Section 7.04 Trustee's Disclaimer. 81
Section 7.05 Notice of Defaults. 81
Section 7.06 [Intentionally Omitted.] 82
Section 7.07 Compensation and Indemnity. 82
Section 7.08 Replacement of Trustee. 82
Section 7.09 Successor Trustee by Merger, etc. 83
Section 7.10 Eligibility; Disqualification. 83
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance. 84
Section 8.02 Legal Defeasance and Discharge. 84
Section 8.03 Covenant Defeasance. 84
Section 8.04 Conditions to Legal or Covenant Defeasance. 85
Section 8.05 Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions. 86
Section 8.06 Repayment to Company. 86
Section 8.07 Reinstatement. 87
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes. 87
Section 9.02 With Consent of Holders of Notes. 88
Section 9.03 [Intentionally Omitted.] 90
Section 9.04 Revocation and Effect of Consents. 90
Section 9.05 Notation on or Exchange of Notes. 90
Section 9.06 Trustee to Sign Amendments, etc. 90
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01 Equal and Ratable Sharing of Collateral by
Holders of Secured Debt. 90
Section 10.02 Ranking of Junior Liens. 91
Section 10.03 Security Documents. 91
Section 10.04 Release of Collateral. 92
Section 10.05 Certificates of the Company. 92
Section 10.06 Authorization of Actions to Be Taken by the Trustee
Under the Security Documents. 92
Section 10.07 Authorization of Receipt of Funds by the Trustee
Under the Security Documents. 93
Section 10.08 Termination of Security Interest. 93
Section 10.09 Further Assurances; Insurance. 93
Section 10.10 Relative Rights. 94
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee. 95
Section 11.02 Limitation on Guarantor Liability. 96
Section 11.03 Execution and Delivery of Note Guarantee. 96
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms. 96
Section 11.05 Releases. 97
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge. 98
Section 12.02 Application of Trust Money. 99
ARTICLE 13
MISCELLANEOUS
Section 13.01 [Intentionally Omitted.] 99
Section 13.02 Notices. 99
Section 13.03 Communication by Holders of Notes with Other
Holders of Notes. 100
Section 13.04 Certificate and Opinion as to Conditions Precedent. 100
Section 13.05 Statements Required in Certificate or Opinion. 101
Section 13.06 Rules by Trustee and Agents. 101
Section 13.07 No Personal Liability of Directors, Officers,
Employees and Stockholders. 101
Section 13.08 Governing Law. 101
Section 13.09 No Adverse Interpretation of Other Agreements. 101
Section 13.10 Patriot Act. 102
Section 13.11 Successors. 102
Section 13.12 Severability. 102
Section 13.13 Counterpart Originals. 102
Section 13.14 Table of Contents, Headings, etc. 102
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G FORM OF JUNIOR LIEN PLEDGE AND SECURITY AGREEMENT
1
INDENTURE dated as of July 31, 2009 among Unisys Corporation, a
Delaware corporation, the Guarantors (as defined herein) and Deutsche Bank
Trust Company Americas, as trustee.
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders (as
defined herein) of the 14 1/4% Senior Secured Notes due 2015 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ABL Collateral" means all now owned or hereafter acquired (a)
"accounts" and "payment intangibles," other than "payment intangibles" (in each
case, as defined in Article 9 of the UCC) which constitute identifiable
proceeds of Collateral which is not ABL Collateral, (b) "deposit accounts" (as
defined in Article 9 of the UCC), "securities accounts" (as defined in Article
8 of the UCC), including all monies, "uncertificated securities," and
"securities entitlements" (as defined in Article 8 of the UCC) contained
therein (including all cash, marketable securities and other funds held in or
on deposit in either of the foregoing), "instruments" (as defined in Article 9
of the UCC), including intercompany notes of Subsidiaries, and "chattel paper"
(as defined in Article 9 of the UCC); (c) general intangibles pertaining to the
other items of property included within clauses (a), (b), (d) and (e) of this
definition of ABL Collateral, including, without limitation, all contingent
rights with respect to warranties on accounts which are not yet "payment
intangibles" (as defined in Article 9 of the UCC); (d) "records" (as defined in
Article 9 of the UCC), "supporting obligations" (as defined in Article 9 of the
UCC) and related "letters of credit" (as defined in Article 5 of the UCC),
commercial tort claims or other claims and causes of action, in each case, to
the extent related primarily to any of the foregoing; and (e) substitutions,
replacements, accessions, products and proceeds (including, without limitation,
insurance proceeds, licenses, royalties, income, payments, claims, damages and
proceeds of suit) of any or all of the foregoing, except to the extent that any
item of property included in clauses (a) through (e) includes Excluded Assets.
"ABL Intercreditor Agreement" means an intercreditor agreement entered
into by the Collateral Trustee in connection with the Permitted ABL Debt, if
any, in substantially the form attached as Exhibit D to the Collateral Trust
Agreement, as amended, supplemented, modified, restated, renewed or replaced
(whether upon or after termination or otherwise), in whole or in part from time
to time, in accordance with the terms of Section 7.1 of the Collateral Trust
Agreement and such intercreditor agreement.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Restricted Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in connection
with, or in contemplation of, such other Person merging with or into, or
becoming a Restricted Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
2
"Additional Notes" means additional Notes (other than the Initial Notes)
issued under this Indenture in accordance with Sections 2.02 and 4.09 hereof,
as part of the same series as the Initial Notes.
"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. For purposes of this definition, "control,"
as used with respect to any Person, means 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. Notwithstanding any of the foregoing to the contrary,
no Person (other than the Company or any Subsidiary of the Company) in whom the
Company or a Subsidiary of the Company makes an Investment in connection with a
Permitted Securitization Program will be deemed to be an Affiliate of the
Company or any of its Subsidiaries solely by reason of such Investment. For
purposes of this definition, the terms "controlling," "controlled by" and
"under common control with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
"Applicable Premium" means, with respect to any Note on any redemption
date, the greater of:
(1) 1.0% of the principal amount of the Note; and
(2) the excess of:
(a) the present value at such redemption date of (i) the redemption price of
the Note at September 15, 2012, (such redemption price being set forth in the
table appearing in Section 3.07(d) hereof) plus (ii) all required interest
payments due on the Note through September 15, 2012, (excluding accrued but
unpaid interest to the redemption date), computed using a discount rate equal
to the Treasury Rate as of such redemption date plus 50 basis points; over
(b) the principal amount of the Note.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary, Euroclear and Clearstream that apply to such transfer or
exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights; provided that the sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole will be governed by the provisions of Section
4.15 hereof and/or Section 5.01 hereof and not by the provisions of Section
4.10 hereof; and
(2) the issuance of Equity Interests by any of the Company's Restricted
Subsidiaries or the sale of Equity Interests in any of its Subsidiaries;
provided that the issuance of preferred stock by any of the Company's
Restricted Subsidiaries will be governed by the provisions of Section 4.09
hereof and not by the provisions of Section 4.10 hereof.
3
Notwithstanding the preceding, none of the following items will be
deemed to be an Asset Sale:
(1) any single transaction or series of related transactions that
involves assets having a Fair Market Value of less than $37.5 million;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the Company;
(4) the sale or lease of products, services, accounts receivable or
notes receivable in the ordinary course of business and any sale or other
disposition of damaged, worn-out or obsolete assets in the ordinary course of
business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) sales or transfers of accounts receivable and related assets of the
type specified in the definition of "Permitted Securitization Program" (or a
fractional undivided interest therein);
(7) a Restricted Payment that does not violate Section 4.07 hereof or a
Permitted Investment;
(8) to the extent allowable under Section 1031 of the Code or any
comparable or successor provision, any exchange of like property (excluding any
boot thereon) for use in a Permitted Business;
(9) the lease, assignment or sub-lease of any real or personal property
in the ordinary course of business;
(10) any financing transaction with respect to property built or
acquired by the Company or any Restricted Subsidiary after the Issue Date;
(11) foreclosures on assets;
(12) an Asset Swap effected in compliance with Section 4.10 hereof;
(13) sales, transfers and other dispositions of Investments in joint
ventures to the extent required by, or made pursuant to, customary buy/sell
arrangements between joint venture parties set forth in joint venture
arrangements and similar binding arrangements;
(14) the licensing or sub-licensing of intellectual property or other
general intangibles in the ordinary course of business; and
(15) any surrender or waiver of contract rights or the settlement,
release or surrender of contract rights or other litigation claims in the
ordinary course of business.
"Asset Swap" means a substantially concurrent purchase and sale or
exchange of assets that are used or useful in a Permitted Business between the
Company or any of its Restricted Subsidiaries and another Person; provided that
any cash received must be applied in accordance with Section 4.10 hereof.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
4
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in
Section 13(d)(3) of the Exchange Act), such "person" will be deemed to have
beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only after the passage of time. The
terms "Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on behalf of such
board;
(2) with respect to a partnership, the Board of Directors of the
general partner of the partnership;
(3) with respect to a limited liability company, the managing member or
members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Business Day" means any day other than 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 by law, regulation or executive order to remain closed.
"Capital Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would
at that time be required to be capitalized and reflected as a liability on a
balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership interests (whether general or limited) or membership interests; and
(4) 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, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars, Euros, any national currency of any
participating member state of the economic and monetary union as contemplated
in the Treaty on European Union, Australian dollars, Brazilian Reals, Indian
Rupees, South African Rand, Swiss Franc and the British pound, or other local
currencies held by the Company and its Restricted Subsidiaries from time to
time in the ordinary course of business;
5
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United
States government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than
two years from the date of acquisition;
(3) certificates of deposit and Eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case, with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better in
the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of
the date of determination) in the case of non-U.S. banks;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial paper or marketable short-term money market or readily
marketable direct obligations and similar securities having one of the two
highest ratings obtainable from Moody's or S&P and, in each case, maturing
within two years after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1) through (5) of this
definition.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect 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 properties or
assets of the Company and its Subsidiaries taken as a whole to any "person"
(as that term is used in Section 13(d)(3) of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company; or
(3) the consummation of any transaction (including, without limitation,
any merger or consolidation), the result of which is that any "person" (as
defined above), becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock of the Company, measured by voting power rather
than number of shares.
"Clearstream" means Clearstream Banking, S.A., or its successor.
"Class" means (1) in the case of Junior Lien Debt, every Series of
Junior Lien Debt, taken together, and (2) in the case of Priority Lien Debt,
every Series of Priority Lien Debt, taken together.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all properties and assets at any time owned or
acquired by the Company or any Guarantor, except:
(1) Excluded Assets;
6
(2) any properties and assets in which the Collateral Trustee is
required to release its Liens pursuant to Section 4.1 of the Collateral Trust
Agreement; and
(3) any properties and assets that no longer secure the Notes or any
Obligations in respect thereof pursuant to Section 10.04 hereof and Section 4.4
of the Collateral Trust Agreement,
provided that, in the case of clauses (2) and (3), if such Liens are required
to be released as a result of the sale, transfer or other disposition of any
properties or assets of the Company or any Guarantor, such assets or properties
will cease to be excluded from the Collateral if the Company or any Guarantor
thereafter acquires or reacquires such assets or properties.
"Collateral Trust Agreement" means the Collateral Trust Agreement,
dated as of the date hereof, by and among the Company, the Guarantors from time
to time party thereto, Deutsche Bank Trust Company Americas, as Trustee,
Deutsche Bank Trust Company Americas, as trustee under the indenture governing
the First Lien Notes and Deutsche Bank Trust Company Americas, as Collateral
Trustee.
"Collateral Trustee" means Deutsche Bank Trust Company Americas, in its
capacity as collateral trustee under the Collateral Trust Agreement, together
with its successors in such capacity.
"Company" means Unisys Corporation, a Delaware corporation, and any
and all successors thereto.
"Consolidated EBITDA" means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such provision
for taxes was deducted in computing such Consolidated Net Income; plus
(2) the Consolidated Interest Expense of such Person and its Restricted
Subsidiaries for such period, to the extent that such Consolidated Interest
Expense was deducted in computing such Consolidated Net Income; plus
(3) depreciation, amortization (including amortization of intangibles
but excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash charges or 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 Restricted Subsidiaries for
such period to the extent that such depreciation, amortization and other non-
cash charges or expenses were deducted in computing such Consolidated Net
Income; plus
(4) Prior Restructuring Charges of such Person and its Restricted
Subsidiaries,
in each case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any specified
Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense of such specified Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including,
without limitation, amortization of original issue discount, non-cash interest
payments, and the interest component of any deferred payment obligations; plus
7
(2) any interest on Indebtedness of another Person that is guaranteed
by such specified Person or one or more of its Restricted Subsidiaries or
secured by a Lien on assets of such specified Person or one of its Restricted
Subsidiaries, but only to the extent such Guarantee or Lien is called upon; plus
(3) the product of (a) all cash dividends paid on any series of
preferred stock of such specified Person or any of its Restricted Subsidiaries
times (b) a fraction, the numerator of which is one and the denominator is one
minus the then current combined federal, state and local statutory tax rate of
such specified Person, expressed as a decimal,
in each case, determined on a consolidated basis calculated in accordance with
GAAP.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the net income (loss) of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP and without any reduction in respect of preferred stock
dividends; provided that:
(1) all gains and losses realized in connection with the disposal,
abandonment or discontinuation of operations, asset dispositions or abandonment
or the disposition of securities other than in the ordinary course of business,
together with any related provision for taxes on any such gain or loss, will be
excluded;
(2) the net income or loss of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of accounting will be
excluded except that (a) the Company's equity in the net income of any such
Person for such period will be included in Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Person during such period
to the Company or a Restricted Subsidiary as a dividend or other distribution
and (b) the Company's equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period will be included in determining such
Consolidated Net Income to the extent such loss has been funded with cash from
the Company or a Restricted Subsidiary;
(3) any extraordinary, unusual or non-recurring loss, charges or
expenses (whether cash or non-cash) caused by or attributable to any
acquisition will be excluded; provided that such charges or expenses are
incurred within twelve months of such acquisition;
(4) all non-cash charges and expenses, and no more than $150.0 million
in the aggregate of cash charges and expenses, in each case, caused by or
attributable to any restructuring, severance, relocation costs, consolidation
and closing costs, integration costs, business optimization costs, transition
costs, signing, retention or completion bonuses and curtailments or
modifications to pension and post-retirement employee benefit plans, will be
excluded;
(5) the net income or loss of any Restricted Subsidiary will be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been 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 Restricted Subsidiary or its
stockholders unless such restriction with respect to the payment of dividends
or similar distributions has been legally waived; provided that (a) the net
income of any such Restricted Subsidiary for such period will be included in
Consolidated Net Income up to the aggregate amount that could have been
distributed by such Restricted Subsidiary during such period to the Company or
a Restricted Subsidiary as a dividend or other distribution and (b) up to an
aggregate of $25.0 million of net income of all such Restricted Subsidiaries in
any twelve-month period will be included;
8
(6) the cumulative effect of a change in accounting principles will be
excluded;
(7) charges related to equity compensation (including 401(k) matching,
restricted stock units, options and stock appreciation rights) will be excluded;
(8) effects of adjustments resulting from the application of purchase
accounting in relation to any consummated acquisition or the amortization or
write-off of any amounts thereof, net of taxes, will be excluded;
(9) any non-cash impairment charge or non-cash asset write-off,
including, without limitation, impairment charges or asset write-offs related
to intangible assets, long-lived assets or investments in debt and equity
securities, in each case, pursuant to GAAP and the amortization of intangibles
arising pursuant to GAAP will be excluded;
(10) any fees, expenses and charges incurred during such period, or any
amortization thereof for such period, in connection with any acquisition or
disposition, Investment, Asset Sale, recapitalization, issuance or repayment of
Indebtedness permitted to be incurred by this Indenture, issuance of Equity
Interests, refinancing transaction or amendment or modification of any debt
instrument (in each case, including any such transaction consummated prior to
the Issue Date and any such transaction undertaken but not completed) and any
charges or non-recurring merger costs incurred during such period as a result
of any such transaction, including (i) such fees, expenses or charges related
to the offering of the Notes and (ii) any amendment or other modification of
the Notes and the Credit Facilities and, in each case, will be excluded; and
(11) to the extent covered by insurance and actually reimbursed, or, so
long as the Company has made a determination that there exists reasonable
evidence that such amount will in fact be reimbursed by the insurer and only to
the extent that such amount is (a) not denied by the applicable carrier in
writing within 180 days and (b) in fact reimbursed within 365 days of the date
of such evidence (with a deduction for any amount so added back to the extent
not so reimbursed within 365 days), expenses with respect to liability or
casualty events or business interruption will be excluded.
"Consolidated Total Indebtedness" means, as of any date of
determination, an amount equal to the aggregate amount of all Indebtedness of
the Company and its Restricted Subsidiaries outstanding as of such date of
determination, determined on a consolidated basis in accordance with GAAP,
after giving effect to any incurrence of Indebtedness and the application of
the proceeds therefrom giving rise to such determination.
"continuing" means, with respect to any Default or Event of Default,
that such Default or Event of Default has not been cured or waived.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
9
"Credit Facilities" means one or more debt facilities or commercial
paper facilities, in each case, with banks or other institutional lenders
providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special
purpose entities formed to borrow from such lenders against such receivables),
letters of credit or other long-term indebtedness, in each case, as amended,
restated, modified, renewed, refunded, replaced in any manner (whether upon or
after termination or otherwise) or refinanced (including by means of sales of
debt securities) in whole or in part from time to time whether by the same or
any other agent(s) or lender(s) including any such replacement, refunding or
refinancing facility or indenture that increases the amount permitted to be
borrowed thereunder or alters the maturity thereof (provided that such increase
in borrowings is permitted under Section 4.09 hereof) or adds Restricted
Subsidiaries as additional borrowers or guarantors thereunder.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"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.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"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, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Non-cash Consideration" means the Fair Market Value of non-
cash consideration received by the Company or any of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation, executed by the principal financial officer
of the Company, less the amount of cash or Cash Equivalents received in
connection with a subsequent sale of or collection on such Designated Non-cash
Consideration.
"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, in each case, at the option of the holder of the Capital Stock),
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 of the Capital Stock, in whole or in part, on or prior to
December 15, 2015. Notwithstanding the preceding sentence, any Capital Stock
that would constitute Disqualified Stock solely because the holders of the
Capital Stock have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale (each defined
in a substantially identical manner to the corresponding definitions in this
Indenture) will not constitute Disqualified Stock. The amount of Disqualified
Stock deemed to be outstanding at any time for purposes of this Indenture will
be the maximum amount that the Company and its Restricted Subsidiaries may
become obligated to pay upon the maturity of, or pursuant to any mandatory
redemption provisions of, such Disqualified Stock, exclusive of accrued
dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of the Company
that was formed under the laws of the United States or any state of the United
States or the District of Columbia or that guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.
"equally and ratably" means, in reference to sharing of Liens or
proceeds thereof as between holders of Secured Obligations within the same
Class, that such Liens or proceeds:
(1) will be allocated and distributed first to the Secured Debt
Representative for each outstanding Series of Secured Debt within that Class,
for the account of the holders of such Series of Secured Debt, ratably in
proportion to the principal of, and interest and premium (if any) and
reimbursement obligations (contingent or otherwise) with respect to letters of
credit, if any, outstanding (whether or not drawings have been made under such
letters of credit) on, each outstanding Series of Secured Debt within that
Class when the allocation or distribution is made, and thereafter; and
(2) will be allocated and distributed (if any remain after payment in
full of all of the principal of, and interest and premium (if any) and
reimbursement obligations (contingent or otherwise) with respect to letters of
credit, if any, outstanding (whether or not drawings have been made on such
letters of credit) on all outstanding Secured Obligations within that Class) to
the Secured Debt Representative for each outstanding Series of Secured
Obligations within that Class, for the account of the holders of any remaining
Secured Obligations within that Class, ratably in proportion to the aggregate
unpaid amount of such remaining Secured Obligations within that Class due and
demanded (with written notice to the applicable Secured Debt Representative and
the Collateral Trustee) prior to the date such distribution is made.
"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).
"Equity Offering" means a public or private issuance or sale of either
(1) Equity Interests of the Company (other than Disqualified Stock and other
than to a Subsidiary of the Company) or (2) Equity Interests of a direct or
indirect parent entity of the Company (other than to the Company or a
Subsidiary of the Company) to the extent that the net proceeds therefrom are
contributed to the common equity capital of the Company.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system, or its successor.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Assets" means each of the following:
(1) any real property or fixtures located outside of the United States
and any leasehold interests in real property;
(2) any lease, license, contract, property right or agreement to which
the Company or any Guarantor is a party, and any of its rights or interests
thereunder, if and to the extent that a security interest is (i) prohibited by
or in violation of any law, rule or regulation applicable to the Company or any
Guarantor, or (ii) will constitute or result in a breach, termination or
default under or requires any consent not obtained under any such lease,
license, contract, property right or agreement (other than to the extent that
any such law, rule, regulation, term, provision or condition would be rendered
ineffective with respect to the creation of the security interest in the
Collateral pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any
relevant jurisdiction or any other applicable law or principles of equity);
provided that any such lease, license, contract or agreement shall cease to be
an Excluded Asset and the Collateral shall include (and such security interest
shall attach) immediately at such time as the contractual or legal prohibition
shall no longer be applicable, and to the extent severable, shall attach
immediately to any portion of such lease, license, contract or agreement not
subject to the prohibitions specified in subclauses (i) and (ii) of this clause
(2); provided further, that the exclusions referred to in this clause (2) shall
not include any proceeds of any such lease, license, contract, property right
or agreement;
11
(3) any other property or assets (other than the Mortgaged Property (as
defined in the Collateral Trust Agreement)) in which a Lien cannot be perfected
by (i) the filing of a financing statement under the UCC of the relevant
jurisdiction or (ii) a filing at the U.S. Patent and Trademark Office or the
U.S. Copyright Offices, so long as the aggregate Fair Market Value of all such
property and assets does not at any one time exceed $20.0 million;
(4) any deposit account for taxes, payroll, employee benefits or
similar items and any other account or financial asset in which such security
interest would be unlawful or in violation of any Plan or employee benefit
agreement;
(5) accounts receivable and related assets transferred or purported to
be transferred in a Permitted Securitization Program;
(6) assets, with respect to which any applicable law prohibits the
creation or perfection of security interests therein;
(7) deposit or checking accounts with balances below $1.0 million, so
long as the aggregate balance of all such deposit and checking accounts does
not at any one time exceed $10.0 million;
(8) any motor vehicles, vessels and aircraft, or other property subject
to a certificate of title;
(9) any "intent-to-use" application for registration of a Trademark (as
defined in the Pledge Agreement) filed pursuant to Section 1(b) of the Lanham
Act, 15 U.S.C. ? 1051, prior to the filing of a "Statement of Use" pursuant to
Section 1(d) of the Lanham Act or an "Amendment to Allege Use" pursuant to
Section 1(c) of the Lanham Act with respect thereto, solely to the extent, if
any, that, and solely during the period, if any, in which the grant of a
security interest therein would impair the validity or enforceability of any
registration that issues from such intent-to-use application under applicable
federal law;
(10) cash or Cash Equivalents securing reimbursement obligations under
letters of credit or surety bonds, which letters of credit and surety bonds are
otherwise not secured by Priority Liens, Junior Liens or Permitted ABL Liens;
and
(11) Equity Interests in any joint venture with a third party that is
not an Affiliate, to the extent a pledge of such Equity Interests is prohibited
by the documents governing such joint venture.
12
"Existing Indebtedness" means all Indebtedness of the Company and its
Subsidiaries in existence on the Issue Date (other than the Indebtedness
represented by the Initial Notes and the First Lien Notes issued on the Issue
Date), until such amounts are repaid.
"Existing Notes" means the Company's 6 7/8% Senior Notes due 2010 and
8% Senior Notes due 2012 in existence on the Issue Date.
"Fair Market Value" means the fair market value that would be paid by a
willing buyer to an unaffiliated willing seller (unless otherwise provided
herein).
"First Lien Notes" means the 12 3/4% Senior Secured Notes due 2014
issued by the Company pursuant to the indenture, dated July 31, 2009, among the
Company, the Guarantors and Deutsche Bank Trust Company Americas, as trustee.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
that is not a Domestic Subsidiary.
"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.
"GE Intercreditor Agreement" means that certain intercreditor agreement,
dated the Issue Date, among General Electric Capital Corporation, as
receivables program agent, the Collateral Trustee, Unisys Funding Corporation I
and the other parties to the Company's existing Receivables Facility as of the
Issue Date, as amended, supplemented, modified, restated, renewed or replaced
(whether upon or after termination or otherwise), in whole or in part from time
to time.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on all Global Notes issued under this
Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4)
or 2.06(d)(2) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"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, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial
statement conditions or otherwise).
"Guarantors" means any Material Domestic Subsidiary of the Company that
executes a Note Guarantee in accordance with the provisions of this Indenture,
and their respective successors and assigns, in each case, until the Note
Guarantee of such Person has been released in accordance with the provisions of
this Indenture, other than Unisys Funding Corporation I for so long as Unisys
Funding Corporation I is a Receivables Subsidiary under a Permitted
Securitization Program and prohibited from guaranteeing the Notes by any
documentation with respect thereto.
13
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or
from floating to fixed), interest rate cap agreements and interest rate collar
agreements;
(2) other agreements or arrangements designed to manage interest rates
or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange rates or commodity prices.
"Holder" means a Person in whose name a Note is registered.
"Incremental Priority Lien Capacity" means, as of any time of
determination, the then-current Priority Lien Cap minus the aggregate principal
amount of Priority Lien Debt then outstanding.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price
of any property or services due more than six months after such property is
acquired or such services are completed except (i) any such balance that
constitutes a trade payable or similar obligation to a trade creditor, in each
case accrued in the ordinary course of business and (ii) any earn-out
obligations until such obligation becomes a liability on the balance sheet of
such Person in accordance with GAAP; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet
(excluding the footnotes thereto) of the specified Person prepared in
accordance with GAAP. In addition, the term "Indebtedness" includes all
Indebtedness of others secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified Person) and, to
the extent not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person, other than by endorsement of negotiable
instruments for collection in the ordinary course of business.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
14
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means $246,603,000 in aggregate principal amount of
Notes issued under this Indenture on the date hereof.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Interest Coverage Ratio" means with respect to any specified Person
for any period, the ratio of the Consolidated EBITDA of such Person for such
period to the Consolidated Interest Expense of such Person for such period. In
the event that the specified Person or any of its Restricted Subsidiaries
incurs, assumes, guarantees, repays, repurchases, redeems, defeases or
otherwise discharges any Indebtedness (other than ordinary working capital
borrowings) or issues, repurchases or redeems Disqualified Stock or preferred
stock subsequent to the commencement of the period for which the Interest
Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Interest Coverage Ratio is made (the
"Calculation Date"), then the Interest Coverage Ratio will be calculated giving
pro forma effect (as determined in good faith by a responsible financial or
accounting officer of the Company) to such incurrence, assumption, Guarantee,
repayment, repurchase, redemption, defeasance or other discharge of
Indebtedness, or such issuance, repurchase, or redemption of preferred stock,
and the use of the proceeds therefrom, as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Interest Coverage Ratio:
(1) acquisitions that have been made by the specified Person or any of
its Restricted Subsidiaries, including through mergers or consolidations, or
any Person or any of its Restricted Subsidiaries is acquired by the specified
Person or any of its Restricted Subsidiaries, and including all related
financing transactions and including increases in ownership of Restricted
Subsidiaries, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date, or that are to be
made on the Calculation Date, will be given pro forma effect (as determined in
good faith by a responsible financial or accounting officer of the Company, and
which may include, for the avoidance of doubt, cost savings and operating
expense reductions resulting from such acquisition which is being given pro
forma effect; provided that such cost savings and operating expense reductions
have been realized or are expected to be realized within 12 months of the date
of such acquisition) as if they had occurred on the first day of the four-
quarter reference period;
(2) the Consolidated EBITDA attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and ownership
interests therein) disposed of prior to the Calculation Date, will be excluded;
(3) the Consolidated Interest Expense attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation Date,
will be excluded, but only to the extent that the obligations giving rise to
such Consolidated Interest Expense will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation Date
will be deemed to have been a Restricted Subsidiary at all times during such
four-quarter period;
15
(5) any Person that is not a Restricted Subsidiary on the Calculation
Date will be deemed not to have been a Restricted Subsidiary at any time during
such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate in effect on the
Calculation Date had been the applicable rate for the entire period (taking
into account any Hedging Obligation applicable to such Indebtedness if such
Hedging Obligation has a remaining term as at the Calculation Date at least as
long as the Indebtedness to which it applies or in excess of 12 months).
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the form
of loans (including Guarantees 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 Restricted Subsidiary of the Company sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of the
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of the Company, the Company will be
deemed to have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Company's Investments in such Restricted
Subsidiary that were not sold or disposed of in an amount determined as
provided in Section 4.07(c) hereof. The acquisition by the Company or any
Restricted Subsidiary of the Company of a Person that holds an Investment in a
third Person will be deemed to be an Investment by the Company or such
Restricted Subsidiary in such third Person in an amount equal to the Fair
Market Value of the Investments held by the acquired Person in such third
Person in an amount determined as provided in Section 4.07(c) hereof. Except
as otherwise provided in this Indenture, the amount of an Investment will be
determined at the time the Investment is made and without giving effect to
subsequent changes in value.
"Issue Date" means July 31, 2009.
"Junior Lien" means a Lien granted by a Security Document to the
Collateral Trustee, at any time, upon any Collateral of the Company or any
Guarantor to secure Junior Lien Obligations, that is:
(1) with respect to Collateral other than ABL Collateral, junior in
priority to all Priority Liens and senior in priority to all Permitted ABL
Liens, if any;
(2) with respect to ABL Collateral, junior in priority to all Priority
Liens and all Permitted ABL Liens, if any; and
(3) pari passu with all other Liens to secure Junior Lien Obligations.
"Junior Lien Debt" means:
(1) the Notes issued by the Company on the Issue Date;
(2) Additional Notes or any other Indebtedness (including letters of
credit and reimbursement obligations with respect thereto) of the Company that
is secured equally and ratably with the Notes, on a subordinated basis to any
Priority Lien Debt, by a Junior Lien that was permitted to be incurred and so
secured under each applicable Secured Debt Document; provided that:
16
(a) on or before the date on which such Indebtedness is incurred by the
Company, such Indebtedness is designated by the Company, in an Officers'
Certificate delivered to each Junior Lien Representative and the Collateral
Trustee, as "Junior Lien Debt" for the purposes of the Secured Debt Documents;
provided that no Series of Secured Debt may be designated as both (i) Junior
Lien Debt and Priority Lien Debt or (ii) Junior Lien Debt and Permitted ABL
Debt;
(b) such Indebtedness is governed by an indenture, credit agreement or
other agreement that includes a Lien Sharing and Priority Confirmation; and
(c) all requirements set forth in the Collateral Trust Agreement as to
the confirmation, grant or perfection of the Collateral Trustee's Liens to
secure such Indebtedness or Obligations in respect thereof are satisfied (and
the satisfaction of such requirements and the other provisions of this clause
(c) will be conclusively established if the Company delivers to the Collateral
Trustee an Officers' Certificate stating that such requirements and other
provisions have been satisfied and that such Indebtedness is "Junior Lien
Debt"); and
(3) Hedging Obligations of the Company incurred to hedge or manage
interest rate risk in accordance with the terms of the Secured Debt Documents;
provided that:
(a) on or before the date on which such Hedging Obligations are
incurred by the Company, such Hedging Obligations are designated by the
Company, in an Officers' Certificate delivered to each Priority Lien
Representative, Junior Lien Representative and the Collateral Trustee, as
"Junior Lien Debt" for the purposes of the Secured Debt Documents; provided
that no Series of Secured Debt may be designated as both (i) Junior Lien Debt
and Priority Lien Debt or (ii) Junior Lien Debt and Permitted ABL Debt;
(b) the counterparty in respect of such Hedging Obligations, in its
capacity as a holder or beneficiary of such Junior Lien, executes and delivers
a joinder to the Collateral Trust Agreement in accordance with the terms
thereof or otherwise becomes subject to the terms of the Collateral Trust
Agreement; and
(c) all other requirements set forth in the Collateral Trust Agreement
have been complied with (and the satisfaction of such requirements will be
conclusively established if the Company delivers to the Collateral Trustee an
Officers' Certificate stating that such requirements and other provisions have
been satisfied and that such Hedging Obligations are "Junior Lien Debt").
"Junior Lien Documents" means, collectively, this Indenture and any
other indenture, credit agreement or other agreement governing each Series of
Junior Lien Debt and the Security Documents (other than any Security Documents
that do not secure Junior Lien Obligations).
"Junior Lien Obligations" means Junior Lien Debt and all other
Obligations in respect thereof.
"Junior Lien Representative" means (1) the Trustee, in the case of the
Notes or (2) in the case of any future Series of Junior Lien Debt, the trustee,
agent or representative of the holders of such Series of Junior Lien Debt who
maintains the transfer register for such Series of Junior Lien Debt and (a) is
appointed as a Junior Lien Representative (for purposes related to the
administration of the Security Documents) pursuant to the indenture, credit
agreement or other agreement governing such Series of Junior Lien Debt,
together with its successors in such capacity, and (b) has become a party to
the Collateral Trust Agreement by executing a joinder in the form required
under the Collateral Trust Agreement.
17
"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, except in connection with any Permitted Securitization
Program, any filing of or agreement to give any financing statement under the
UCC (or equivalent statutes) of any jurisdiction; provided that in no event
shall an operating lease be deemed to constitute a Lien.
"Lien Sharing and Priority Confirmation" means:
(1) as to any Series of Priority Lien Debt, the written agreement of
the holders of such Series of Priority Lien Debt, as set forth in the
indenture, credit agreement or other agreement governing such Series of
Priority Lien Debt, for the enforceable benefit of all holders of each existing
and future Series of Secured Debt, each existing and future Secured Debt
Representative and each existing and future holder of Permitted Prior Liens:
(a) that all Priority Lien Obligations will be and are secured equally
and ratably by all Priority Liens at any time granted by the Company or any
Guarantor to secure any Obligations in respect of such Series of Priority Lien
Debt, whether or not upon property otherwise constituting Collateral, and that
all such Priority Liens will be enforceable by the Collateral Trustee for the
benefit of all holders of Priority Lien Obligations equally and ratably;
(b) that the holders of Obligations in respect of such Series of
Priority Lien Debt are bound by the provisions of the Collateral Trust
Agreement (and any ABL Intercreditor Agreement), including the provisions
relating to the ranking of Priority Liens and the order of application of
proceeds from enforcement of Priority Liens; and
(c) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other Security
Documents;
(2) as to any Series of Junior Lien Debt, the written agreement of the
holders of such Series of Junior Lien Debt, as set forth in the indenture,
credit agreement or other agreement governing such Series of Junior Lien Debt,
for the enforceable benefit of all holders of each existing and future Series
of Secured Debt, each existing and future Secured Debt Representative and each
existing and future holder of Permitted Prior Liens:
(a) that all Junior Lien Obligations will be and are secured equally
and ratably by all Junior Liens at any time granted by the Company or any
Guarantor to secure any Obligations in respect of such Series of Junior Lien
Debt, whether or not upon property otherwise constituting collateral for such
Series of Junior Lien Debt, and that all such Junior Liens will be enforceable
by the Collateral Trustee for the benefit of all holders of Junior Lien
Obligations equally and ratably;
(b) that the holders of Obligations in respect of such Series of Junior
Lien Debt are bound by the provisions of the Collateral Trust Agreement (and
any ABL Intercreditor Agreement), including the provisions relating to the
ranking of Junior Liens and the order of application of proceeds from the
enforcement of Junior Liens; and
18
(c) consenting to and directing the Collateral Trustee to perform its
obligations under the Collateral Trust Agreement and the other Security
Documents; and
(3) as to any Series of Permitted ABL Debt of the Company or any
Guarantor, the written agreement of the holders of such Series of Permitted ABL
Debt, as set forth in the credit agreement or other agreement governing such
Series of Permitted ABL Debt, for the enforceable benefit of all holders of
each existing and future Series of Secured Debt, each existing and future
Secured Debt Representative and each existing and future holder of Permitted
Prior Liens:
(a) that the holders of Obligations in respect of such Series of
Permitted ABL Debt are bound by the provisions of the Collateral Trust
Agreement and the ABL Intercreditor Agreement; and
(b) consenting to the performance of, and directing the collateral
agent or other representative with respect to such Series of Permitted ABL Debt
to perform, its obligations under the Collateral Trust Agreement and the ABL
Intercreditor Agreement.
"Material Domestic Subsidiaries" means (1) any Domestic Subsidiary
having (a) assets with a book value or Fair Market Value equal to at least $5.0
million or (b) aggregate revenues (excluding intercompany revenues) for the 12-
month period ending on the last day of the most recent fiscal quarter of the
Company for which financial statements are available in an amount equal to at
least $5.0 million and (2) any Domestic Subsidiary designated in an Officers'
Certificate delivered to the Trustee as a "Material Domestic Subsidiary" for
purposes of this Indenture. If at any time:
(1) the aggregate book value or Fair Market Value of the assets for all
Domestic Subsidiaries other than Material Domestic Subsidiaries would equal or
exceed $10.0 million; or
(2) the aggregate revenues (excluding intercompany revenues) for the 12-
month period ending on the last day of the most recent fiscal quarter of the
Company for which financial statements are available for all Domestic
Subsidiaries other than Material Domestic Subsidiaries would equal or exceed
$10.0 million,
then, in each case, the Company shall designate one or more of such Domestic
Subsidiaries as a "Material Domestic Subsidiary" pursuant to clause (2) of the
first sentence of this definition until neither of the conditions described in
the foregoing clauses (a) or (b) exist. The Company may, at any time, release
any Guarantor from its Note Guarantee if (x) the applicable Subsidiary is not
a "Material Domestic Subsidiary" pursuant to clause (1) of the first sentence
of this definition and (y) after giving effect to such release, neither of the
conditions described in the foregoing clauses (a) or (b) exist.
"Moody's" means Moody's Investors Service, Inc., a subsidiary of
Moody's Corporation, and any successor to its rating agency business.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted 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
(1) the direct costs relating to such Asset Sale, including, without
limitation, legal, accounting and investment banking fees, fees of advisors and
consultants, and sales commissions; (2) Specified Reserves and Accruals;
(3) any relocation expenses incurred as a result of the Asset Sale; and (4)
taxes paid or payable as a result of the Asset Sale, in each case, after taking
into account any available tax credits or deductions and any tax sharing
arrangements, and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP.
19
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness),
(b) is directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender; and
(2) no default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any
holder of any other Indebtedness of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment of the Indebtedness to be accelerated or payable prior to its Stated
Maturity.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Documents" means this Indenture, the Notes and the Security
Documents (other than any security documents that do not secure Obligations
with respect to the Notes).
"Note Guarantee" means the Guarantee by each Guarantor of the Company's
obligations under this Indenture and the Notes, executed pursuant to the
provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"obligor" on the Notes and the Note Guarantees means the Company and
the Guarantors, respectively, and any successor obligor upon the Notes and the
Note Guarantees, respectively.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate that (i) is signed on
behalf of the Company by two Officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the Company and (ii) if applicable, meets
the requirements of Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear
and Clearstream).
"Permitted ABL Debt" means:
20
(1) Indebtedness (including letters of credit and reimbursement
obligations with respect thereto) incurred by the Company or any of its
Restricted Subsidiaries secured by Permitted ABL Liens; provided, that on or
before the date on which such Indebtedness is incurred by the Company or any
Restricted Subsidiary:
(a) such Indebtedness is designated by the Company, in an Officers'
Certificate delivered to each Priority Lien Representative and the Collateral
Trustee, as "Permitted ABL Debt" for the purposes of the Secured Debt
Documents; provided that no Series of Secured Debt may be designated as both
(i) Permitted ABL Debt and Priority Lien Debt or (ii) Permitted ABL Debt and
Junior Lien Debt; and
(b) if such Indebtedness is incurred by the Company or any Guarantor,
such Indebtedness (i) is governed by a credit agreement or other agreement that
includes a Lien Sharing and Priority Confirmation and (ii) the collateral agent
or other representative with respect to such Indebtedness, the Collateral
Trustee, the Company and each applicable Guarantor, has duly executed and
delivered an ABL Intercreditor Agreement; and
(2) Hedging Obligations of the Company incurred to hedge or manage
interest rate risk in accordance with the terms of the Secured Debt Documents;
provided that:
(a) on or before the date on which such Hedging Obligations are
entered into by the Company, such Hedging Obligations are designated by the
Company, in an Officers' Certificate delivered to each Priority Lien
Representative, Junior Lien Representative and the Collateral Trustee, as
"Permitted ABL Debt" for the purposes of the Secured Debt Documents; provided
that no Series of Secured Debt may be designated as both (i) Permitted ABL Debt
and Priority Lien Debt or (ii) Permitted ABL Debt and Junior Lien Debt; and
(b) the counterparty in respect of such Hedging Obligations, in its
capacity as a holder or beneficiary of such Permitted ABL Lien, executes and
delivers a joinder to the Collateral Trust Agreement in accordance with the
terms thereof or otherwise becomes subject to the terms of the Collateral
Trust Agreement.
"Permitted ABL Debt Obligations" means Permitted ABL Debt and all other
Obligations in respect thereof.
"Permitted ABL Lien Total Cap" means, as of any date, $225.0 million
minus the aggregate Receivables Facility Amount as of such date for all
receivables securitization programs of the Company and its Restricted
Subsidiaries
"Permitted ABL Lien U.S. Cap" means, as of any date, $175.0 million
minus the aggregate Receivables Facility Amount as of such date for all U.S.
Receivables Securitization Programs.
"Permitted ABL Liens" means Liens granted to the collateral agent under
any Permitted ABL Debt facility, at any time, upon (i) ABL Collateral of the
Company or any Guarantor, (ii) current assets of any Foreign Subsidiary or
Domestic Subsidiary that is not a Guarantor or (iii) Collateral other than ABL
Collateral, which Liens in the case of this clause (iii) are junior in priority
to all Priority Liens and Junior Liens on the terms set forth in the ABL
Intercreditor Agreement, in each case to secure Permitted ABL Debt Obligations.
21
"Permitted Business" means any of the lines of business conducted by
the Company and its Subsidiaries on the Issue Date and any businesses similar,
related, incidental or ancillary thereto or that constitutes a reasonable
extension or expansion thereof.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of the
Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company;
or
(b) 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 Restricted Subsidiary of the Company;
and, in each case, any Investment held by such Person; provided that such
Investment was not acquired by such Person in contemplation of such
acquisition, merger, consolidation or transfer;
(4) any 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 4.10 hereof;
(5) any acquisition of Capital Stock solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the Company;
(6) any Investments received (A) in compromise or resolution of
obligations of creditors or customers that were incurred in the ordinary course
of business of the Company or any of its Restricted Subsidiaries, including
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any creditor or customer; (B) in compromise or
resolution of litigation, arbitration or other disputes with Persons who are
not Affiliates; or (C) as a result of a foreclosure by the Company or any of
its Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to, or Guarantees of Indebtedness of, employees,
officers or directors made in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company in an aggregate amount not in excess
of $15.0 million with respect to all loans, advances or Guarantees made since
the Issue Date;
(9) repurchases of the Notes or the First Lien Notes;
(10) (a) the acquisition by a Receivables Subsidiary in connection with
a Permitted Securitization Program of Equity Interests of a trust or other
Person established by such Receivables Subsidiary to effect such Permitted
Securitization Program; (b) any other Investment by the Company or a Subsidiary
of the Company in a Receivables Subsidiary or in any other Person in connection
with a Permitted Securitization Program; provided that such Investment pursuant
to clause (b) is in the form of a note or other instrument that the Receivables
Subsidiary or other Person is required to repay as soon as practicable from
available cash collections less amounts required to be established as reserves
pursuant to contractual agreements with entities that are not Affiliates of the
Company entered into as part of a Permitted Securitization Program; and (c) any
other Investment relating to a Receivables Subsidiary that, in the good faith
determination of the Company, is necessary or advisable to effect a Permitted
Securitization Program;
22
(11) Investments in joint ventures and other business entities (in each
case that are not Subsidiaries of the Company) that are engaged in a Permitted
Business, in an aggregate amount (with the amount of each such Investment
measured on the date it was made and without giving effect to subsequent
changes in value) not to exceed $75.0 million at any one time outstanding;
(12) Investments existing on the Issue Date;
(13) guarantees of Indebtedness permitted under Section 4.09 hereof;
(14) an Asset Swap effected in compliance with Section 4.10 hereof;
(15) Investments consisting of purchases and acquisitions of inventory,
supplies, material or equipment;
(16) advances, loans or extensions of trade credit in the ordinary
course of business by the Company or any of its Restricted Subsidiaries; and
(17) other Investments in any Person having an aggregate Fair Market
Value (with the Fair Market Value of each such Investment measured on the date
it was made and without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to this clause (17)
that are at the time outstanding, not to exceed the greater of (a) $75.0
million or (b) 2.5% of the consolidated total assets of the Company and its
Restricted Subsidiaries (measured at the time each such Investment is made).
"Permitted Liens" means:
(1) Priority Liens securing (a) Priority Lien Debt in an aggregate
principal amount (as of the date of incurrence of any Priority Lien Debt and
after giving pro forma effect to the application of any net proceeds therefrom
within 35 days of the date of such incurrence), not exceeding the Priority Lien
Cap and, when taken together with all other Secured Debt as of such date, the
Secured Debt Cap, and (b) all other related Priority Lien Obligations;
(2) Junior Liens securing (a) Junior Lien Debt in an aggregate
principal amount (as of the date of incurrence of any Junior Lien Debt and
after giving pro forma effect to the application of any net proceeds therefrom
within 35 days of the date of such incurrence), when taken together with all
other Secured Debt as of such date, not exceeding the Secured Debt Cap and (b)
all other related Junior Lien Obligations;
(3) Permitted ABL Liens securing (a) Permitted ABL Debt of the Company
and its Restricted Subsidiaries in an aggregate principal amount not exceeding
(as of the date of incurrence of any Permitted ABL Debt and after giving pro
forma effect to the application of any net proceeds therefrom within 35 days of
the date of such incurrence) the Permitted ABL Lien Total Cap and (b) all other
related Permitted ABL Debt Obligations; provided that no Lien may be granted
pursuant to the foregoing clause (3)(a) to secure Indebtedness of the Company
or any Domestic Subsidiary if, after giving effect to such Lien, the aggregate
principal amount of Permitted ABL Debt of the Company and its Domestic
Subsidiaries (as of the date of incurrence of any Permitted ABL Lien Debt and
after giving pro forma effect to the application of any net proceeds therefrom
within 35 days of the date of such incurrence) would exceed the Permitted ABL
Lien U.S. Cap;
23
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens on property of a Person existing at the time such Person
becomes a Restricted Subsidiary of the Company or is merged with or into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
Person becoming a Restricted Subsidiary of the Company or such merger or
consolidation and do not extend to any assets other than those of the Person
that becomes a Restricted Subsidiary of the Company or is merged into or
consolidated with the Company or a Restricted Subsidiary of the Company;
(6) Liens on property (including Capital Stock) existing at the time of
acquisition of the property by the Company or any Subsidiary of the Company;
provided that such Liens were in existence prior to, and not incurred in
contemplation of, such acquisition;
(7) Liens, pledges or deposits to secure the performance of public or
statutory obligations, performance, bid, appeal, surety or customs bonds, to
secure the payment of rent or under worker's compensation or unemployment laws
or other obligations of a like nature incurred in the ordinary course of
business;
(8) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted to be incurred pursuant to Section 4.09(b)(6) hereof covering only
the assets acquired with or financed by such Indebtedness;
(9) Liens on assets (other than current assets) of any Foreign
Subsidiary to secure Indebtedness or other Obligations permitted to be incurred
pursuant to Section 4.09(b)(14) hereof;
(10) Liens existing on the Issue Date (other than Liens to secure the
Notes and the First Lien Notes to be issued on the Issue Date);
(11) 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 is required in conformity
with GAAP has been made therefor;
(12) Liens imposed by law, such as carriers', warehousemen's, landlord's
and mechanics' Liens, in each case, incurred in the ordinary course of business;
(13) survey exceptions, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real property that were not incurred in connection with
Indebtedness and that do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person;
24
(14) Liens (other than Priority Liens, Junior Liens and Permitted ABL
Liens) to secure any Permitted Refinancing Indebtedness permitted to be
incurred under this Indenture; provided, however, that:
(a) the new Lien is limited to all or part of the same property and
assets that secured or, under the written agreements pursuant to which the
original Lien arose, could secure the original Lien (plus improvements and
accessions to, such property or proceeds or distributions thereof); and
(b) the Indebtedness secured by the new Lien is not increased to any
amount greater than the sum of (x) the outstanding principal amount, or, if
greater, committed amount, of the Indebtedness renewed, refunded, refinanced,
replaced, defeased or discharged with such Permitted Refinancing Indebtedness
and (y) an amount necessary to pay any fees and expenses, including premiums,
related to such renewal, refunding, refinancing, replacement, defeasance or
discharge;
(15) Liens on assets of the Company or any Subsidiary (including a
Receivables Subsidiary) incurred in connection with a Permitted Securitization
Program;
(16) Liens securing Hedging Obligations so long as the related
Indebtedness is, and is permitted to be under this Indenture, secured by a Lien
on the same property securing such Hedging Obligations;
(17) leases, subleases, licenses or sublicenses granted to others in
the ordinary course of business which do not materially interfere with the
ordinary conduct of the business of the Company or any of its Restricted
Subsidiaries and do not secure any Indebtedness;
(18) Liens on equipment of the Company or any of its Restricted
Subsidiaries granted in the ordinary course of business;
(19) Liens arising from UCC financing statement filings regarding
operating leases entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;
(20) Liens arising out of conditional sale, title retention,
consignment or similar arrangements, or that are contractual rights of
set-off, relating to the sale or purchase of goods entered into by the Company
or any of its Restricted Subsidiary in the ordinary course of business;
(21) deposits made in the ordinary course of business to secure
liability to insurance carriers;
(22) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 6.01(a)(8) so long as such
Liens are adequately bonded;
(23) Liens (i) of a collection bank arising under Section 4-210 of the
UCC on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodity brokerage accounts incurred in the ordinary course
of business and not for speculative purposes, and (iii) in favor of banking
institutions arising as a matter of law encumbering deposits (including the
right of set-off) and which are within the general parameters customary in the
banking industry;
25
(24) Liens deemed to exist in connection with Investments in repurchase
agreements permitted under Section 4.09 hereof; provided that such Liens do not
extend to any assets other than those that are the subject of such repurchase
agreement;
(25) Liens that are contractual rights of set-off relating to pooled
deposit or sweep accounts of the Company or any of its Restricted Subsidiaries
to permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Company and its Restricted Subsidiaries;
(26) Liens securing obligations owed by the Company or any Restricted
Subsidiary to any lender under any Credit Facilities or any Affiliate of such a
lender, in each case in respect of any overdraft and related liabilities
arising from treasury, depository and cash management services or any automated
clearing house transfers of funds;
(27) any encumbrance or restriction (including put and call
arrangements) with respect to capital stock of any joint venture or similar
arrangement pursuant to any joint venture or similar agreement;
(28) Liens, pledges or deposits to secure the performance of any
contracts for production, research or development with or for the U.S.
government or any department or agency thereof, directly or indirectly,
providing for advance, partial or progress payments on such contracts and for a
Lien upon money advanced or paid pursuant to such contracts, or upon any
material, equipment, tools, machinery, land, buildings or supplies in
connection with the performance of such contracts to secure such payments to,
or Indebtedness owing to, the U.S. government;
(29) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary with respect to obligations in an aggregate amount
that, when taken together with all other obligations secured by Liens pursuant
to this clause (29), do not exceed $50.0 million; and
(30) Liens on cash or Cash Equivalents securing reimbursement
obligations under letters of credit and surety bonds, which letters of credit
or surety bonds are otherwise not secured by Priority Liens, Junior Liens or
Permitted ABL Liens, in an aggregate amount not to exceed $250.0 million.
For purposes of this definition, all letters of credit will be deemed
to have a principal amount equal to the maximum potential liability of the
Company and its Restricted Subsidiaries thereunder and all Hedging Obligations
will be valued at zero.
"Permitted Prior Liens" means:
(1) Liens described in clauses (5), (6), (8), (10), (15), (25), (26)
and (30) of the definition of "Permitted Liens"; and
(2) Permitted Liens that arise by operation of law and are not
voluntarily granted, to the extent entitled by law to priority over the Liens
created by the Security Documents.
"Permitted Refinancing Indebtedness" means any Indebtedness (other than
Secured Debt or Permitted ABL Debt), Disqualified Stock or preferred stock of
the Company or any of its Restricted Subsidiaries issued in exchange for, or
the net proceeds of which are used to renew, refund, refinance, replace,
defease or discharge other Indebtedness, Disqualified Stock or preferred stock
of the Company or any of its Restricted Subsidiaries (other than intercompany
Indebtedness, Disqualified Stock or preferred stock); provided that:
26
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness, Disqualified Stock or
preferred stock renewed, refunded, refinanced, replaced, defeased or discharged
(plus all accrued interest on the Indebtedness and the amount of all fees and
expenses, including premiums, incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
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, Disqualified Stock or preferred stock, if applicable, being
renewed, refunded, refinanced, replaced, defeased or discharged;
(3) (a) if the Indebtedness being renewed, refunded, refinanced,
replaced, defeased or discharged 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 renewed,
refunded, refinanced, replaced, defeased or discharged or (b) if Disqualified
Stock or preferred stock is being renewed, refunded, refinanced or replaced,
such Permitted Refinancing Indebtedness must be Disqualified Stock or preferred
stock, respectively;
(4) such Indebtedness shall not include Indebtedness, Disqualified
Stock or preferred stock of a Subsidiary of the Company that refinances
Indebtedness, Disqualified Stock or preferred stock of the Company unless such
Subsidiary was the obligor on the Indebtedness, Disqualified Stock or preferred
stock being renewed, refunded, refinanced, replaced, defeased or discharged; and
(5) for the avoidance of doubt, such Permitted Refinancing Indebtedness
shall not have the benefit of greater security than the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged, except
pursuant to Permitted Liens incurred in compliance with Section 4.12 hereof.
"Permitted Securitization Program" means any receivables securitization
program (including the program established under the Receivables Facility)
pursuant to which the Company or any of its Subsidiaries sells, conveys or
otherwise transfers any accounts receivable, whether now existing or arising in
the future, and any assets related thereto that are customarily transferred or
in respect of which security interests are customarily granted in connection
with asset securitization transactions involving accounts receivable
(including, without limitation, all collateral securing accounts receivable,
all contracts and all guarantees or other obligations in respect of accounts
receivable and all proceeds of accounts receivable); provided, however, that a
receivables securitization program shall be deemed not to be a "Permitted
Securitization Program" hereunder to the extent that such program, as of its
closing date or as of the date of any increase in the Receivables Facility
Amount thereunder:
(1) causes the aggregate Receivables Facility Amount for all
receivables securitization programs of the Company and its Restricted
Subsidiaries to exceed the lesser of (i) $225.0 million minus the aggregate
principal amount of Permitted ABL Debt of the Company and any of its Restricted
Subsidiaries outstanding as of such date (after giving pro forma effect to the
application of the net proceeds from any Permitted ABL Debt outstanding as of
such date within 35 days of the date of the incurrence of such Permitted ABL
Debt) and (ii) $200.0 million; or
27
(2) causes the aggregate Receivables Facility Amount for all U.S.
Receivables Securitization Programs, when taken together with the aggregate
principal amount of Permitted ABL Debt of the Company and any of its Domestic
Subsidiaries outstanding as of such date (after giving pro forma effect to the
application of the net proceeds from any Permitted ABL Debt outstanding as of
such date within 35 days of the date of the incurrence of such Permitted ABL
Debt), to exceed $175.0 million.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Plan" means any employee benefit plan, retirement plan, deferred
compensation plan, restricted stock plan, health, life, disability or other
insurance plan or program, employee stock purchase plan, employee stock
ownership plan, pension plan, stock option plan or similar plan or arrangement
of the Company or any Subsidiary, or any successor thereof.
"Pledge Agreements" means the Junior Lien Pledge and Security Agreement,
dated as of the date of this Indenture, and substantially in the form attached
as Exhibit G hereto, and each other pledge and security agreement dated the
date of this Indenture and substantially in the form of the Exhibits to the
Junior Lien Pledge and Security Agreement, as each such agreement may be
amended, modified or supplemented from time to time.
"Prior Restructuring Charges" means all charges and expenses caused by
or attributable to any restructuring, severance, relocation costs,
consolidation and closing costs, integration costs, business optimization
costs, transition costs, signing, retention or completion bonuses and
curtailments or modifications to pension and post-retirement employee benefit
plans incurred prior to April 1, 2009.
"Priority Lien" means a Lien granted by a Security Document to the
Collateral Trustee, at any time, upon any property of the Company or any
Guarantor to secure Priority Lien Obligations, and that is:
(1) with respect to Collateral other than ABL Collateral, senior in
priority to all Junior Liens and Permitted ABL Liens, if any;
(2) with respect to ABL Collateral, junior in priority to all Permitted
ABL Liens, if any, and senior in priority to all Junior Liens; and
(3) pari passu with all other Liens to secure Priority Lien Obligations.
"Priority Lien Cap" means $500.0 million minus the aggregate amount of
all Net Proceeds of a Sale of Collateral or a Sale of a Guarantor in excess of
$250.0 million applied by the Company or any of its Restricted Subsidiaries
since the Issue Date to repurchase, redeem or defease any Existing Notes or to
repay any replacement financing thereof with a maturity date prior to September
15, 2015.
"Priority Lien Debt" means:
(1) the First Lien Notes issued by the Company on the Issue Date;
(2) additional notes issued under any indenture or other Indebtedness
(including letters of credit and reimbursement obligations with respect thereto)
of the Company that is secured equally and ratably with the First Lien Notes by
a Priority Lien that was permitted to be incurred and so secured under each
applicable Secured Debt Document; provided, in the case of any additional notes
or other Indebtedness referred to in this clause (2), that:
28
(a) on or before the date on which such additional notes were issued or
Indebtedness is incurred by the Company, such additional notes or other
Indebtedness, as applicable, is designated by the Company, in an Officers'
Certificate delivered to each Priority Lien Representative and the Collateral
Trustee, as "Priority Lien Debt" for the purposes of the Secured Debt Documents;
provided that no Series of Secured Debt may be designated as both (i) Priority
Lien Debt and Junior Lien Debt or (ii) Priority Lien Debt and Permitted ABL
Debt;
(b) such additional notes or such Indebtedness is governed by an
indenture or a credit agreement, as applicable, or other agreement that
includes a Lien Sharing and Priority Confirmation; and
(c) all requirements set forth in the Collateral Trust Agreement as to
the confirmation, grant or perfection of the Collateral Trustee's Lien to
secure such additional notes or such Indebtedness or Obligations in respect
thereof are satisfied (and the satisfaction of such requirements and the other
provisions of this clause (c) will be conclusively established if the Company
delivers to the Collateral Trustee an Officers' Certificate stating that such
requirements and other provisions have been satisfied and that such notes or
such Indebtedness is "Priority Lien Debt"); and
(3) Hedging Obligations of the Company incurred to hedge or manage
interest rate risk in accordance with the terms of the Secured Debt Documents;
provided that:
(a) on or before the date on which such Hedging Obligations are
incurred by the Company, such Hedging Obligations are designated by the
Company, in an Officers' Certificate delivered to each Priority Lien
Representative, Junior Lien Representative and the Collateral Trustee, as
"Priority Lien Debt" for the purposes of the Secured Debt Documents; provided
that no Series of Secured Debt may be designated as both (i) Priority Lien Debt
and Junior Lien Debt or (ii) Priority Lien Debt and Permitted ABL Debt;
(b) the counterparty in respect of such Hedging Obligations, in its
capacity as a holder or beneficiary of such Priority Lien, executes and
delivers a joinder to the Collateral Trust Agreement in accordance with the
terms thereof or otherwise becomes subject to the terms of the Collateral Trust
Agreement; and
(c) all other requirements set forth in the Collateral Trust Agreement
have been complied with (and the satisfaction of such requirements will be
conclusively established if the Company delivers to the Collateral Trustee an
Officers' Certificate stating that such requirements and other provisions have
been satisfied and that such Hedging Obligations are "Priority Lien Debt").
"Priority Lien Documents" means the indenture for the First Lien Notes
and any additional indenture, credit facility or other agreement pursuant to
which any Priority Lien Debt is incurred and the Security Documents (other than
any Security Documents that do not secure Priority Lien Obligations).
29
"Priority Lien Obligations" means Priority Lien Debt and all other
Obligations in respect thereof.
"Priority Lien Representative" means (1) the trustee with respect to
the First Lien Notes, in the case of the First Lien Notes, or (2) in the case
of any other Series of Priority Lien Debt, the trustee, agent or representative
of the holders of such Series of Priority Lien Debt who maintains the transfer
register for such Series of Priority Lien Debt and is appointed as a
representative of the Priority Lien Debt (for purposes related to the
administration of the Security Documents) pursuant to the indenture, credit
agreement or other agreement governing such Series of Priority Lien Debt.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualifying Equity Interests" means Equity Interests of the Company
other than Disqualified Stock.
"Receivables Facility" means that certain Receivables Purchase
Agreement dated as of May 16, 2008 (as such may be amended from time to time)
by and among Unisys Funding Corporation I, as the seller, the financial
institutions signatory thereto from time to time, as purchasers, and General
Electric Capital Corporation, as purchaser and as administrative agent for the
purchasers, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and, in each case,
as amended, restated, modified, renewed, refunded, refinanced in whole or in
part or supplemented in whole or in part from time to time; provided that prior
to and after giving effect to any such amendment, restatement, modification,
renewal, refunding, refinancing or supplement, such Receivables Facility shall
be part of a Permitted Securitization Program.
"Receivables Facility Amount" means, as of any date, with respect to
any receivables securitization program of the Company or its Subsidiaries, the
amount of Indebtedness of the receivables financing subsidiary incurred
thereunder (other than Indebtedness to the Company and its Subsidiaries)
outstanding as of such date or, if the obligations of the receivables financing
subsidiary thereunder would not be deemed to constitute Indebtedness, the
aggregate amount of funds advanced to the receivables financing subsidiary
thereunder (other than advances by the Company and its Subsidiaries)
outstanding as of such date.
"Receivables Subsidiary" means a Subsidiary of the Company which
engages in no activities other than in connection with the financing of
accounts receivable (a) no portion of the Indebtedness or any other Obligations
(contingent or otherwise) of which (i) is guaranteed by the Company or any
Restricted Subsidiary of the Company (excluding guarantees of Obligations
(other than the principal of, and interest on, Indebtedness) pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course of business in connection with a Permitted Securitization
Program), (ii) is recourse to or obligates the Company or any Restricted
Subsidiary of the Company in any way other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course in
connection with a Permitted Securitization Program or (iii) subjects any
property or asset of the Company or any Restricted Subsidiary of the Company
(other than accounts receivable and related assets as provided in the
definition of "Permitted Securitization Program"), directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course in connection with a Permitted Securitization Program, (b) with
which neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on terms
no less favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of the
Company, other than fees payable in the ordinary course in connection with
servicing accounts receivable and (c) with which neither the Company nor any
Restricted Subsidiary of the Company has any obligation to maintain or preserve
such Receivables Subsidiary's financial condition or cause such Receivables
Subsidiary to achieve certain levels of operating results.
30
"Registration Rights Agreement" means that certain Registration Rights
Agreement to be entered into as of the Issue Date in connection with the
exchange offers, among the Company, Goldman, Sachs & Co., Banc of America
Securities LLC and Deutsche Bank Securities Inc.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of
Regulation S.
"Required Junior Lien Debtholders" means, at any time, the holders of a
majority in aggregate principal amount of all Junior Lien Debt then
outstanding, calculated in accordance with Section 7.2 of the Collateral Trust
Agreement. For purposes of this definition, Junior Lien Debt registered in the
name of, or beneficially owned by, the Company or any Affiliate of the Company
will be deemed not to be outstanding.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Trust and Securities Services group of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referenced Person that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor to its rating agency business.
"Sale of Collateral" means any Asset Sale involving a sale or other
disposition of Collateral.
31
"Sale of a Guarantor" means any Asset Sale involving a sale or other
disposition of the Capital Stock of a Guarantor.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means Priority Lien Debt and Junior Lien Debt.
"Secured Debt Cap" means $1,050.0 million.
"Secured Debt Documents" means the Priority Lien Documents and the
Junior Lien Documents.
"Secured Debt Representative" means each Priority Lien Representative
and Junior Lien Representative.
"Secured Obligations" means Junior Lien Obligations and Priority Lien
Obligations.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means the Collateral Trust Agreement, the GE
Intercreditor Agreement, any ABL Intercreditor Agreement, each Lien Sharing and
Priority Confirmation, the Pledge Agreements and all security agreements,
pledge agreements, mortgages, deeds of trust, collateral assignments,
collateral agency agreements, control agreements or other grants or transfers
for security executed and delivered by the Company or any Guarantor creating
(or purporting to create) a Lien upon Collateral in favor of the Collateral
Trustee, in each case, as amended, modified, renewed, restated or replaced, in
whole or in part, from time to time, in accordance with its terms and Section
7.1 of the Collateral Trust Agreement.
"Series of Junior Lien Debt" means, severally, each issue or series of
Junior Lien Debt for which a single transfer register is maintained.
"Series of Priority Lien Debt" means, severally, the First Lien Notes
and any additional First Lien Notes, any Credit Facility or other Indebtedness
that constitutes Priority Lien Debt.
"Series of Secured Debt" means each Series of Junior Lien Debt and each
Series of Priority Lien Debt.
"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 Securities Act, as such Regulation is in effect on
the Issue Date.
"Special Dividends" has the meaning given to such term in the
Registration Rights Agreement.
"Specified Reserves and Accruals" means amounts reserved, accrued or
paid for cost reduction actions associated with a particular Asset Sale, as
specified in an Officers' Certificate delivered to the Trustee; provided that
any such amounts so reserved or accrued that are not actually paid within
eighteen months of the closing of such Asset Sale will no longer be considered
"Specified Reserves and Accruals" hereunder and will be deemed to constitute
Net Proceeds of such Asset Sale received on the closing date thereof.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the Issue Date, and will 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.
32
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association, joint venture, limited liability
company or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or membership or other Equity Interests
entitled (without regard to the occurrence of any contingency and after giving
effect to any voting agreement or stockholders' agreement that effectively
transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the
time owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership a general partner or managing general partner of
which is such Person or a Subsidiary of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. sec
77aaa-77bbbb).
"Treasury Rate" means, as of any redemption date, the yield to maturity
as of such redemption date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data))
most nearly equal to the period from the redemption date to September 15, 2012;
provided, however, that if the period from the redemption date to September 15,
2012, is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year will be
used.
"Trustee" means Deutsche Bank Trust Company Americas, until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"UCC" means the Uniform Commercial Code as in effect from time to time
in any applicable jurisdiction.
"Unrestricted Definitive Note" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear and
is not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (A) any Subsidiary of the Company that
is designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors or (B) any
Subsidiary of an Unrestricted Subsidiary, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) except as permitted by Section 4.11 hereof, is not party to any
agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company;
33
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"U.S. Receivables Securitization Program" means any U.S. receivables
securitization program of the Company with respect to (i) a Receivables
Subsidiary that is a Domestic Subsidiary or (ii) transfers by the Company or
the Guarantors of assets that would be ABL Collateral if such assets were not
subject to a Permitted Securitization Program.
"Voting Stock" of any specified 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:
(1) 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
of the Indebtedness, 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
(2) the then outstanding principal amount of such Indebtedness.
Section 1.02 Other Definitions.
Defined in
Term Section
- ---- -----------
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Authentication Order" 2.02
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Collateral Proceeds Account" 4.10
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Permitted Debt" 4.09
"Payment Default" 6.01
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
34
Section 1.03 [Intentionally Omitted].
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(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;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act will be
deemed to include substitute, replacement or successor sections of or rules
adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
will be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note will be dated the date of its authentication. The Notes will
be in denominations of $2,000 and integral multiples of $1,000 in excess
thereof.
The terms and provisions contained in the Notes will constitute, and
are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions
of this Indenture, the provisions of this Indenture will govern and be
controlling.
35
(b) Global Notes. Notes issued in global form will be substantially in
the form of Exhibit A hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes issued in definitive form will be substantially in the form of Exhibit A
hereto (but without the Global Note Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Each Global Note
will represent such of the outstanding Notes as will be specified therein and
each will provide that it represents the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal 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 aggregate principal amount of outstanding Notes represented
thereby will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature of
the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed
by at least one Officer (an "Authentication Order"), authenticate Notes for
original issue that may be validly issued under this Indenture, including any
Additional Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed the aggregate principal amount of Notes authorized for
issuance by the Company pursuant to one or more Authentication Orders, 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 authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company will maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar will 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
will 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 may change the
Depositary at any time without notice to any Holder, but the Company will
notify the Trustee of the name and address of any new Depositary.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
36
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will 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 of, premium on, if any, or interest on, the Notes, and will 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 by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than the Company or a Subsidiary) will have
no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it will 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
will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will 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. If the Trustee is not the Registrar, the Company will 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.
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case,
a successor Depositary is not appointed by the Company within 120 days after
the date of such notice from the Depositary;
(2) the Company in its sole discretion determines that the Global Notes
(in whole but not in part) should be exchanged for Definitive Notes and
delivers a written notice to such effect to the Trustee; or
(3) there has occurred and is continuing a Default or Event of Default
with respect to the Notes.
Upon the occurrence of any of the preceding events in (1), (2) or (3)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.06(b) or (c)
hereof.
37
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also will require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in the
same Restricted Global Note in accordance with the transfer restrictions set
forth in the Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global
Notes. In connection with all transfers and exchanges of beneficial interests
that are not subject to Section 2.06(b)(1) above, the transferor of such
beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or
exchanged; and
(ii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or
(B) both:
(i) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the Notes
or otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
38
(3) Transfer of Beneficial Interests to Another Restricted Global Note.
A beneficial interest in any Restricted Global Note may be transferred to a
Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the requirements
of Section 2.06(b)(2) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a beneficial
interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial
interest in the Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transferee will take delivery in the form of a beneficial
interest in the IAI Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(2) above and the Registrar receives
the following:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(a) thereof; or
(B) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note, a certificate from such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests
transferred.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
39
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Definitive Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted Definitive
Note, a certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Company or
any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(1) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
40
(2) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive Note
or may transfer such beneficial interest to a Person who takes delivery thereof
in the form of an Unrestricted Definitive Note only if the Registrar receives
the following:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or
(B) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case, if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive Note
or to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Definitive Note, then, upon satisfaction of the conditions set
forth in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company will execute and the
Trustee will authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(3) will be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest requests through instructions to the Registrar from or through the
Depositary and the Participant or Indirect Participant. The Trustee will
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(3) will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or to
transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
41
(B) if such Restricted Definitive Note is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a Non-
U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to
an exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being transferred pursuant to
an effective registration statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item
(3)(c) thereof,
the Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global Note,
and in all other cases, the IAI Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of a Restricted Definitive Note may exchange such Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note only if the Registrar
receives the following:
(A) if the Holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications
in item (1)(c) thereof; or
(B) if the Holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
42
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee will cancel
the applicable Unrestricted Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a
time when an Unrestricted Global Note has not yet been issued, the Company will
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee will authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar will register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name of
Persons who take delivery thereof in the form of a Restricted Definitive Note
if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if the
Registrar receives the following:
43
(A) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
(B) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case, if the Registrar so requests, an Opinion of Counsel in
form reasonably acceptable to the Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from
the Holder thereof.
(f) [Intentionally Omitted].
(g) Legends. The following legends will appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and
each Definitive Note (and all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND ARE NOT EXPECTED TO BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE ''SECURITIES
ACT'') AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE AND PROVIDED THAT
PRIOR TO SUCH TRANSFER, THE TRUSTEE IS FURNISHED WITH AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS."
44
(B) Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2)
or (e)(3) of this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) will not bear the Private Placement Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
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 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS 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."
(3) Original Issue Discount Legend. Each Note will bear a legend in
substantially the following form:
"THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTIONS
1272, 1273, AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE
COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS NOTE, UPON WRITTEN
REQUEST, THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE AND
YIELD TO MATURITY WITH RESPECT TO THE NOTE. ANY SUCH WRITTEN REQUEST SHOULD
BE SENT TO COMPANY AT THE FOLLOWING ADDRESS: UNISYS CORPORATION, UNISYS WAY,
BLUE BELL, PENNSYLVANIA 19424, ATTENTION: TREASURER."
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(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled 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 or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly
and an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company
will execute and the Trustee will authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section 2.02
hereof or at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial interest
in a Global Note or to a Holder of a Definitive Note 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 2.10, 3.06, 3.09, 4.10,
4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the transfer of or
exchange of any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes will be the valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any 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;
(B) to register the transfer of or to exchange any Note 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.
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(6) 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 on such Notes and
for all other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel required
to be submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile with
originals to follow by mail delivery.
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 will issue and the Trustee, upon receipt of an
Authentication Order, will 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 for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
will 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 canceled 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 2.08 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 protected purchaser.
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 Notes payable on that date, then on and after that date such
Notes will be deemed to be no longer outstanding and will 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 any Guarantor, or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any Guarantor, will be considered as though not outstanding, except that for
the purposes of determining whether the Trustee will be protected in relying on
any such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
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Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
will authenticate temporary Notes. Temporary Notes will be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as may be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company will prepare and the
Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will 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 will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else will cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes will 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.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it will
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 will 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 will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
may 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) will 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 AND PREPAYMENT
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 must furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall
occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
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Section 3.02 Selection of Notes to Be Redeemed or Purchased.
(a) If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase on a pro rata basis, based on the amounts tendered or required to be
prepaid or redeemed (or, in the case of Notes issued in global form pursuant to
Article 2 hereof, based on a method that most nearly approximates a pro rata
selection as the Trustee deems fair and appropriate) unless otherwise required
by law or applicable stock exchange or depositary requirements.
(b) No Notes of $2,000 or less can be redeemed in part. Notices of
redemption will be mailed by first class mail at least 30 but not more than 60
days before the redemption date to each Holder to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture. Notices of
redemption shall not be conditional.
(c) If any Note is to be redeemed in part only, the notice of
redemption that relates to that Note will state the portion of the principal
amount of that Note that is to be redeemed. A new Note in principal amount
equal to the unredeemed portion of the original Note will be issued in the name
of the Holder of Notes upon cancellation of the original Note. Notes called for
redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions thereof called
for redemption.
(d) In the event of partial redemption or purchase by lot, the
particular Notes to be redeemed or purchased will be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
or purchase date by the Trustee from the outstanding Notes not previously
called for redemption or purchase.
(e) The Trustee will promptly notify the Company in writing of the
Notes selected for redemption or purchase and, in the case of any Note selected
for partial redemption or purchase, the principal amount thereof to be redeemed
or purchased. Notes and portions of Notes selected will be in amounts of
$2,000 or whole multiples of $1,000 in excess thereof; except that if all of
the Notes of a Holder are to be redeemed or purchased, the entire outstanding
amount of Notes held by such Holder shall be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Indenture that apply to
Notes called for redemption or purchase also apply to portions of Notes called
for redemption or purchase.
Section 3.03 Notice of Redemption.
(a) Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company will mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption date
if the notice is issued in connection with a defeasance of the Notes or a
satisfaction and discharge of this Indenture pursuant to Articles 8 or 12
hereof.
(b) The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
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(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 upon cancellation of the original Note;
(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 and/or Section of this Indenture
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.
(c) At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company has delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in Section 3.03(b) hereof.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption or Purchase Price.
(a) One Business Day prior to the redemption or purchase date, the
Company will deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption or purchase price of and accrued and unpaid interest, if
any, on all Notes to be redeemed or purchased on that date. The Trustee or the
Paying Agent will promptly 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 or purchase price of, and accrued and unpaid interest, if
any, on all Notes to be redeemed or purchased.
(b) If the Company complies with the provisions of Section 3.05(a)
hereof, on and after the redemption or purchase date, interest will cease to
accrue on the Notes or the portions of Notes called for redemption or purchase.
If a Note is redeemed or purchased on or after an interest record date but on
or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at
the close of business on such record date. If any Note called for redemption
or purchase is not so paid upon surrender for redemption or purchase because of
the failure of the Company to comply with Section 3.5(a) hereof, interest shall
be paid on the unpaid principal, from the redemption or purchase 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.
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Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to September 15, 2012, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture, upon not less than 30 nor more than 60 days'
notice, at a redemption price equal to 114.250% of the principal amount of the
Notes redeemed, plus accrued and unpaid interest, if any, to the date of
redemption (subject to the rights of Holders of Notes on the relevant record
date to receive interest on the relevant interest payment date), with the net
cash proceeds from one or more Equity Offerings; provided that:
(1) at least 65% of the aggregate principal amount of Initial Notes
(excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and
(2) the redemption occurs within 90 days of the date of the closing of
such Equity Offering.
(b) At any time prior to September 15, 2012, the Company may on any one
or more occasions redeem all or a part of the Notes, upon not less than 30 nor
more than 60 days' notice, at a redemption price equal to 100% of the principal
amount of the Notes redeemed, plus the Applicable Premium as of, and accrued
and unpaid interest, if any, to, the applicable date of redemption, subject to
the rights of Holders of Notes on the relevant record date to receive interest
due on the relevant interest payment date.
(c) Except pursuant to subsections (a) and (b) of this Section 3.07,
the Notes will not be redeemable at the Company's option prior to September 15,
2012.
(d) On or after September 15, 2012, the Company may on any one or more
occasions redeem all or a part of the Notes, 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, if any, on
the Notes redeemed, to the applicable date of redemption, if redeemed during
the twelve-month period beginning on September 15 of the years indicated below,
subject to the rights of Holders of Notes on the relevant record date to
receive interest on the relevant interest payment date:
Year Percentage
- ---- ----------
2012 107.1250%
2013 103.5625%
2014 and thereafter 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(e) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 hereof.
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Section 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking
fund payments with respect to the Notes.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of
Junior Lien Debt containing provisions similar to those set forth in this
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets. The Asset Sale Offer will remain open for a period of at
least 20 Business Days following its commencement and not more than 30 Business
Days, except to the extent that a longer period is required by applicable law
(the "Offer Period"). No later than three Business Days after the termination
of the Offer Period (the "Purchase Date"), the Company will apply all Excess
Proceeds (the "Offer Amount") to the purchase of Notes and such other Junior
Lien Debt (on a pro rata basis based on the principal amount of Notes and such
other Junior Lien Debt surrendered, if applicable) or, if less than the Offer
Amount has been tendered, all Notes and other Junior Lien Debt tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased will be
made in the same manner as interest payments are made.
If any Excess Proceeds remain after consummation of an Asset Sale Offer
in respect of the Notes, such other Junior Lien Debt described above, and in
respect of the First Lien Notes and any Priority Lien Debt as required by
Section 4.10(f) hereof, the Company may use those Excess Proceeds for any
purpose not otherwise prohibited by this Indenture.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest, if
any, will be paid to the Person in whose name a Note is registered at the close
of business on such record date, and no additional interest will be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The notice, which will govern the terms of the Asset Sale Offer, will
state:
(1) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer will
remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to
accrue interest;
(4) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer will cease to accrue
interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may elect to have Notes purchased in denominations of $2,000 or an
integral multiple of $1,000 in excess thereof;
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(6) that Holders electing to have Notes purchased pursuant to any Asset
Sale Offer will be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" attached to the Notes completed, or
transfer by book-entry transfer, to the Company, a Depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and other Junior
Lien Debt surrendered by holders thereof exceeds the Offer Amount, the Company
will select the Notes and other Junior Lien Debt to be purchased on a pro rata
basis based on the principal amount of Notes and such other Junior Lien Debt
surrendered (with such adjustments as may be deemed appropriate by the Company
so that only Notes in denominations of $2,000, or an integral multiple of
$1,000 in excess thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and
will deliver or cause to be delivered to the Trustee the Notes properly
accepted together with an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with
the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, will promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate
and mail or deliver (or cause to be transferred by book entry) such new Note to
such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium on,
if any, and interest, if any, on, the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest, if any, will
be considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest, if any, then due.
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Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may
be served. The Company will 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 fails to maintain any such required office or agency or fails
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 will 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 will
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
hereof.
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company will furnish to the Holders of
Notes or cause the Trustee to furnish to the Holders of Notes, within the time
periods specified in the SEC's rules and regulations:
(1) all quarterly and annual reports that would be required to be filed
with the SEC on Forms 10-Q and 10-K if the Company were required to file such
reports; and
(2) all current reports that would be required to be filed with the SEC
on Form 8-K if the Company were required to file such reports.
All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports;
provided, however, that the Company will not be required to provide any
financial information pursuant to Rule 3-10 or Rule 3-16 of Regulation S-X
promulgated under the Securities Act. Each annual report on Form 10-K will
include a report on the Company's consolidated financial statements by the
Company's certified independent accountants. Notwithstanding the foregoing,
the availability of the reports referred to in clauses (1) and (2) above on the
SEC's Electronic Data-Gathering, Analysis and Retrieval system (or any
successor system) and the Company's website within the time periods specified
in the rules and regulations applicable to such reports will be deemed to
satisfy the Company's delivery obligation.
(b) If, at any time, the Company is no longer subject to the periodic
reporting requirements of the Exchange Act for any reason, the Company will
nevertheless continue filing the reports specified in Section 4.03(a) hereof
with the SEC within the time periods specified above unless the SEC will not
accept such a filing. The Company will not take any action for the purpose of
causing the SEC not to accept any such filings. If, notwithstanding the
foregoing, the SEC will not accept the Company's filings for any reason, the
Company will post the reports referred to in Section 4.03(a) hereof on its
website within the time periods that would apply if the Company were required
to file those reports with the SEC.
54
(c) In addition, the Company agrees that, for so long as any Notes
remain outstanding, if at any time the Company is not required to file with the
SEC the reports required by Section 4.03(a) hereof, the Company will furnish to
the Holders of Notes and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that
in the course of the performance by the signers of their duties as officers of
the Company, the signers would normally have knowledge of any Default or Event
of Default and that the Officers do not know of Default or Event of Default
that occurred during such period (or, if a Default or Event of Default has
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of, premium on, if any, or interest, if any, on, the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.
(b) So long as any of the Notes are outstanding, the Company will
deliver to the Trustee, as soon as possible after the Company becomes aware of
any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto.
Section 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it will 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,
that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
55
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's 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
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company);
(2) 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;
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness of the
Company or any Guarantor that is unsecured or contractually subordinated to the
Notes or to any Note Guarantee (excluding any intercompany Indebtedness between
or among the Company and any of its Restricted Subsidiaries), except a payment
of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Investment
(all such payments and other actions set forth in clauses (1) through (4) above
being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or
would occur as a consequence of such Restricted Payment;
(2) 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 Interest
Coverage Ratio test set forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
since December 11, 2007 (excluding Restricted Payments permitted by clauses (2)-
(14) of Section 4.07(b) hereof), is less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from October 1, 2007 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
(B) 100% of the aggregate net cash proceeds and the Fair Market Value
of marketable securities or other property received by the Company after
December 11, 2007 as a contribution to its equity capital or from the issue or
sale of Qualifying Equity Interests of the Company or from the issue or sale of
convertible or exchangeable Disqualified Stock of the Company or convertible or
exchangeable debt securities of the Company, in each case that have been
converted into or exchanged for Qualifying Equity Interests of the Company
(other than Qualifying Equity Interests and convertible or exchangeable
Disqualified Stock or debt securities sold to a Subsidiary of the Company); plus
56
(C) 100% of the aggregate net cash proceeds and the Fair Market Value
of marketable securities or other property received from the sale or other
disposition (other than to the Company or a Restricted Subsidiary) of
Restricted Investments made by the Company or its Restricted Subsidiaries and
repurchases and redemptions of such Restricted Investments from the Company or
its Restricted Subsidiaries and repayments of loans or advances, and releases
of guarantees, which constituted Restricted Investments by the Company or its
Restricted Subsidiaries when made, in each case after December 11, 2007; plus
(D) to the extent that any Unrestricted Subsidiary of the Company
designated as such after December 11, 2007 is redesignated as a Restricted
Subsidiary after the Issue Date, the Fair Market Value of the Company's
Restricted Investment in such Subsidiary as of the date of such redesignation;
Plus
(E) 100% of the aggregate net cash proceeds and the Fair Market Value
of marketable securities or other property received from the sale (other than
to the Company or a Restricted Subsidiary) of the stock of an Unrestricted
Subsidiary (other than to the extent such Investment constituted a Permitted
Investment) or of any dividends or distributions received by the Company after
December 11, 2007 from an Unrestricted Subsidiary of the Company, to the extent
that such dividends were not otherwise included in the Consolidated Net Income
of the Company for such period.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or the consummation of any irrevocable
redemption within 60 days after the date of declaration of the dividend or
giving of the redemption notice, as the case may be, if at the date of
declaration or notice, the dividend or redemption payment would have complied
with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of the
net cash proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of, Equity Interests of the Company (other than
Disqualified Stock) or from the substantially concurrent contribution of equity
capital to the Company; provided that the amount of any such net cash proceeds
that are utilized for any such Restricted Payment will not be considered to be
Qualifying Equity Interests for purposes of Section 4.07(a)(3)(B) hereof;
(3) the repurchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or to any Note Guarantee or any
Indebtedness of the Company or any Guarantor that is unsecured, with the net
cash proceeds from a substantially concurrent incurrence of Indebtedness that
is permitted to be incurred pursuant to Section 4.09 hereof and constitutes
Permitted Refinancing Indebtedness;
(4) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company held by any current or former
officer, director, employee or consultant of the Company or any of its
Subsidiaries (or any permitted transferees of such Persons) pursuant to any
equity subscription agreement, stock option agreement, shareholders' agreement,
or other management or employee benefit plan or similar agreement; provided
that the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $5.0 million in any twelve-month period;
plus the cash proceeds of key man life insurance policies received by the
Company or its Restricted Subsidiaries after December 11, 2007, less the amount
of any Restricted Payments previously made with the cash proceeds described in
this proviso of this clause (4);
57
(5) the repurchase of Equity Interests deemed to occur upon the
exercise of stock options or warrants to the extent such Equity Interests
represent a portion of the exercise price of those stock options or warrants;
(6) the declaration and payment of regularly scheduled or accrued
dividends to holders of any class or series of Disqualified Stock of the
Company issued on or after the Issue Date or any class or series of preferred
stock of any Restricted Subsidiary of the Company issued in accordance with
Section 4.09 hereof;
(7) the payment of Special Dividends pursuant to the Registration
Rights Agreement;
(8) cash payments in lieu of the issuance of fractional shares in an
aggregate amount not to exceed $10.0 million since the Issue Date;
(9) the repayment of intercompany debt, the incurrence of which was
permitted pursuant to Section 4.09 hereof;
(10) payments made in satisfaction of change of control obligations
with respect to subordinated or unsecured Obligations; provided that the
Company concurrently fulfills its obligations under Section 4.15 hereof;
(11) payments made in satisfaction of an asset sale offer with respect
to subordinated or unsecured Obligations; provided that the Company
concurrently fulfills its obligations under Section 4.10 hererof;
(12) distributions or payments of commissions, discounts and other fees
and charges incurred in connection with any Permitted Securitization Program;
(13) the repurchase, redemption, defeasance or other acquisition or
retirement for value of any Existing Notes; and
(14) other Restricted Payments (except for the declaration and payment
of any dividend to holders of common stock or the repurchase, redemption or
other acquisition or retirement for value of any common stock) in an aggregate
amount not to exceed $100.0 million since the Issue Date,
provided, however, that at the time of, and after giving effect to, any
Restricted Payment under clause (14) of this Section 4.07(b), no Default shall
have occurred and be continuing or would occur as a consequence thereof.
(c) The amount of all Restricted Payments (other than cash) will 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
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities in excess of $25.0 million
(other than cash or Cash Equivalents) that are required to be valued by this
Section 4.07 will be determined by the Board of Directors of the Company.
58
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) The Company will not directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock
to the Company or any of its Restricted Subsidiaries, or with respect to any
other interest or participation in, or measured by, its profits, or pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof will not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements or instruments as in effect on the Issue Date and any
amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings of those agreements or instruments;
(2) the Note Documents and the Note Guarantees;
(3) applicable law, rule, regulation or order;
(4) any agreement or instrument of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time of such acquisition
(except to the extent such agreement or instrument was entered into or created
in connection with or in contemplation of such 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;
(5) customary non-assignment provisions in leases, licenses and other
contracts entered into in the ordinary course of business;
(6) purchase money obligations for property acquired in the ordinary
course of business and Capital Lease Obligations that impose restrictions on
the property purchased or leased of the nature described in clause (3) of
Section 4.08(a) hereof;
(7) any agreement for the sale or other disposition of assets that
contains customary restrictions pending its sale or other disposition,
including restrictions on distributions by a Restricted Subsidiary pending its
sale or other disposition;
(8) Permitted Refinancing Indebtedness; provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are not materially more restrictive, taken as a whole, than those contained in
the agreements governing the Indebtedness being refinanced;
59
(9) Liens permitted to be incurred under this Indenture that limit the
right of the debtor to dispose of the assets subject to such Liens;
(10) provisions limiting the disposition or distribution of assets or
property in joint venture agreements, asset sale agreements, sale-leaseback
agreements, stock sale agreements and other similar agreements, which
limitation is applicable only to the assets that are the subject of such
agreements;
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(12) any agreement or instrument governing Indebtedness, Disqualified
Stock or preferred stock of Foreign Subsidiaries permitted to be incurred
subsequent to the Issue Date pursuant to Section 4.09 hereof;
(13) any amendment, restatement, modification, renewal, supplement,
refunding, replacement or refinancing of an agreement or instrument referred to
in clauses (1), (4), (6) or (12) of this Section 4.08(b) or this clause (13);
provided, however, that the encumbrances and restrictions contained in any such
agreement or instrument are not materially more restrictive, taken as a whole,
than the encumbrances and restrictions contained in such agreements referred to
in clauses (1), (4), (6) or (12) of this Section 4.08(b) on the Issue Date or
the date such Restricted Subsidiary became a Restricted Subsidiary or was
merged into a Restricted Subsidiary, whichever is applicable;
(14) any organizational document or any agreement or arrangement
relating to any Restricted Subsidiary that is not a wholly-owned Restricted
Subsidiary;
(15) Indebtedness or other contractual requirements of a Receivables
Subsidiary in connection with a Permitted Securitization Program; provided that
such restrictions apply only to such Receivables Subsidiary;
(16) Priority Lien Debt, Junior Lien Debt or Permitted ABL Debt that
limits the right of the debtor to dispose of the assets securing such
Indebtedness that is otherwise permitted to be incurred under Section 4.09
hereof and Section 4.12 hereof; and
(17) any agreement or arrangement evidencing Indebtedness or other
obligations in an aggregate amount not to exceed $25.0 million at any time
outstanding.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
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 the Company will not issue any Disqualified Stock and will
not permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and any Guarantor may incur
Indebtedness (including Acquired Debt) or issue preferred stock, if the
Interest 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 or such preferred stock is issued, as the case may be, would
have been at least 2.0 to 1.0, 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 or the preferred stock
had been issued, as the case may be, at the beginning of such four-quarter
period.
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(b) The provisions of Section 4.09(a) hereof will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by the Company or any of its Restricted Subsidiaries
of Priority Lien Debt, Junior Lien Debt or unsecured Indebtedness, under
letters of credit or any one or more indentures or other Credit Facilities, in
an aggregate principal amount at any one time outstanding under this clause (1)
not to exceed (as of any date of incurrence of Indebtedness under this clause
(1) and after giving pro forma effect to the application of any net proceeds
therefrom within 35 days of the date of such incurrence) the Priority Lien Cap;
(2) the incurrence by the Company or any of its Restricted Subsidiaries
of Junior Lien Debt or unsecured Indebtedness, under letters of credit or any
one or more indentures or other Credit Facilities, in an aggregate principal
amount at any one time outstanding under this clause (2) not to exceed (as of
any date of incurrence of Indebtedness under this clause (2) and after giving
pro forma effect to the application of any net proceeds therefrom within 35
days of the date of such incurrence) $550.0 million;
(3) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted ABL Debt, or unsecured Indebtedness, under letters of credit or
any one or more indentures or other Credit Facilities, in an aggregate
principal amount at any one time outstanding under this clause (3) not to
exceed (as of any date of incurrence of Indebtedness under this clause (3) and
after giving pro forma effect to the application of any net proceeds therefrom
within 35 days of the date of such incurrence) the Permitted ABL Lien Total Cap;
provided that the aggregate principal amount of Permitted ABL Debt of the
Company and its Domestic Subsidiaries at any one time outstanding under this
clause (3) shall not exceed the Permitted ABL Lien U.S. Cap;
(4) the incurrence by the Company or any of its Restricted Subsidiaries
of the Existing Indebtedness (other than letters of credit in existence on the
Issue Date, which will be deemed to be incurred under clause (22) below);
(5) the incurrence by any Guarantor of the Note Guarantees to be issued
on the Issue Date or pursuant to Section 4.16 hereof;
(6) the incurrence by the Company or any of its Restricted Subsidiaries
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 design,
construction, installation or improvement of property, plant or equipment used
in the business of the Company or any of its Restricted Subsidiaries, in an
aggregate principal amount, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (6), not to exceed the greater of
(a) $75.0 million and (b) 2.5% of the consolidated total assets of the Company
and its Restricted Subsidiaries (measured at the time of such incurrence);
(7) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to renew, refund, refinance, replace, defease or discharge any
Indebtedness, Disqualified Stock or preferred stock, including additional
Indebtedness, Disqualified Stock or preferred stock incurred to pay accrued
interest, fees and expenses, including premiums, incurred in connection
therewith (other than intercompany Indebtedness, Disqualified Stock or
preferred stock) that was permitted by this Indenture to be incurred under
Section 4.09(a) hereof or clauses (4)-(7), (14), (15) or (23) of this Section
4.09(b);
61
(8) the incurrence by the Company or any of its Restricted Subsidiaries
of intercompany Indebtedness between or among the Company and any of its
Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness
and the payee is not the Company or a Guarantor, such Indebtedness must be
expressly subordinated to the prior payment in full in cash of all Obligations
then due with respect to the Notes, in the case of the Company, or such
Guarantor's Note Guarantee, in the case of a Guarantor; and
(B) (i) 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 Restricted Subsidiary of the Company and (ii) any sale or other transfer
of any such Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company, will be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause (8);
(9) the issuance by any of the Company's Restricted Subsidiaries to the
Company or to any of its Restricted Subsidiaries of shares of preferred stock;
provided, however, that:
(A) any subsequent issuance or transfer of Equity Interests that
results in any such preferred stock being held by a Person other than the
Company or a Restricted Subsidiary of the Company; and
(B) any sale or other transfer of any such preferred stock to a Person
that is not either the Company or a Restricted Subsidiary of the Company,
will be deemed, in each case, to constitute an issuance of such preferred stock
by such Restricted Subsidiary that was not permitted by this clause (9);
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of business;
(11) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company that was
permitted to be incurred by another provision of this Section 4.09; provided
that if the Indebtedness being guaranteed is subordinated to or pari passu with
the Notes or any Note Guarantee, then the guarantee must be subordinated or
pari passu, as applicable, to the Notes and/or such Note Guarantee, as
applicable, to the same extent as the Indebtedness guaranteed;
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of workers' compensation claims, self-
insurance obligations, bankers' acceptances, performance, bid, appeal, surety
and customs bonds, completion guarantees and similar obligations in the
ordinary course of business;
62
(13) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds, so long as such Indebtedness is covered
within five Business Days;
(14) the incurrence by Foreign Subsidiaries of Indebtedness in an
aggregate principal amount at any time outstanding pursuant to this clause
(14), including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (14), not to exceed $75.0 million;
(15) Indebtedness or preferred stock of a Restricted Subsidiary
incurred and outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness incurred in
contemplation of, or in connection with, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary of or was otherwise acquired by the Company); provided that the
aggregate principal amount at any time outstanding pursuant to this clause
(15), including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (15), does not exceed $50.0 million;
(16) the incurrence by a Receivables Subsidiary of Indebtedness in a
Permitted Securitization Program that is without recourse to the Company or to
any of its other Restricted Subsidiaries or their assets (other than such
Receivables Subsidiary and its assets and, as to the Company or any of its
Subsidiaries, other than pursuant to representations, warranties, covenants and
indemnities customary for such transactions) and is not guaranteed by any such
Person, in an aggregate amount at any one time outstanding under this clause
(16) not to exceed $200.0 million as of the date of such incurrence;
(17) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification, adjustment
of purchase price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business or assets of the Company or any
business, assets or Capital Stock of a Subsidiary, provided that the maximum
aggregate liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds actually received by the Company and its Restricted
Subsidiaries in connection with such disposition;
(18) Indebtedness consisting of Indebtedness issued by the Company or a
Restricted Subsidiary to any current or former officer, director, employee or
consultant of the Company or any of its Subsidiaries (or any permitted
transferees of such persons), in each case to finance the purchase or
redemption of Equity Interests of the Company to the extent described in
Section 4.07(b)(4) hereof;
(19) Indebtedness owed on a short-term basis of no longer than 30 days
to banks and other financial institutions incurred in the ordinary course of
business of the Company and its Restricted Subsidiaries with such banks or
financial institutions that arises in connection with ordinary banking
arrangements to manage cash balances of the Company and its Restricted
Subsidiaries;
(20) Indebtedness incurred by a Restricted Subsidiary of the Company in
connection with bankers' acceptances, discounted bills of exchange or the
discounting or factoring of receivables for credit management purposes, in each
case incurred or undertaken in the ordinary course of business on arm's length
commercial terms on a recourse basis;
63
(21) Indebtedness incurred by the Company or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business; provided, that upon the
drawing of such letters of credit or the incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or incurrence;
(22) the incurrence by the Company or any of its Restricted
Subsidiaries of letters of credit in existence on the Issue Date and additional
letters of credit in an aggregate principal amount at any one time outstanding
under this clause (22) not to exceed $250.0 million (with such letters of
credit being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Restricted Subsidiaries thereunder); and
(23) the incurrence or issuance by the Company or any of its Restricted
Subsidiaries of additional Indebtedness (including letters of credit and
reimbursement obligations with respect thereto), Disqualified Stock or
preferred stock in an aggregate principal amount (or accreted value or amount,
as applicable) at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (23), not to exceed
the greater of (a) $250.0 million or (b) 5.0% of the consolidated total assets
of the Company and its Restricted Subsidiaries (measured at the time of such
incurrence).
(c) The Company will not incur, and will not permit any Guarantor to
incur, any Indebtedness (including Permitted Debt) that is contractually
subordinated in right of payment to any other Indebtedness of the Company or
such Guarantor unless such Indebtedness is also contractually subordinated in
right of payment to the Notes and the applicable Note Guarantee on
substantially identical terms; provided, however, that no Indebtedness will be
deemed to be contractually subordinated in right of payment to any other
Indebtedness of the Company solely by virtue of being unsecured or by virtue of
being secured on a junior priority basis.
Notwithstanding any of the foregoing to the contrary, the Company will
not issue, and will not permit any Guarantor to issue, any Series of Priority
Lien Debt with a maturity date on or prior to October 15, 2014, or any Series
of Junior Lien Debt with a maturity date on or prior to September 15, 2015, to
any Person who is, at the time of issuance of such Priority Lien Debt or Junior
Lien Debt, as applicable either (i) an Affiliate of a beneficial owner of
Existing Notes in exchange for any of such beneficial owner's Existing Notes or
(ii) a beneficial owner of Existing Notes either for cash or in exchange for
any such Existing Notes. If the Company or any Guarantor issues (x) Priority
Lien Debt with a maturity date on or prior to October 15, 2014 or (y) Junior
Lien Debt with a maturity date on or prior to September 15, 2015, to any
Person, the Company or such Guarantor shall, prior to issuing such Priority
Lien Debt or Junior Lien Debt, as applicable, obtain a confirmation from such
Person that such Person does not beneficially own any Existing Notes.
(d) For purposes of determining compliance with this Section 4.09,
(1) in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Permitted Debt described in clauses (1)
through (23) of Section 4.09(b) above, or is entitled to be incurred pursuant
to Section 4.09(a) hereof, the Company will be permitted to classify such item
of Indebtedness on the date of its incurrence, or later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with this
Section 4.09; provided that the First Lien Notes issued on the Issue Date will
be deemed to be outstanding under Section 4.09(b)(1) hereof and the Initial
Notes will be deemed to be outstanding under Section 4.09(b)(2) hereof;
64
(2) at the time of incurrence, the Company will be entitled to divide
and classify an item of Indebtedness in more than one of the types of
Indebtedness described in Sections 4.09(a) and 4.09(b) hereof (except with
respect to the Initial Notes and the First Lien Notes issued on the Issue Date,
as provided in Section 4.09(d)(1) above);
(3) letters of credit will be deemed to have a principal amount equal
to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder;
(4) Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness which is otherwise included in the determination of a
particular amount of Indebtedness shall not be included; and
(5) with respect to any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of
Indebtedness denominated in a foreign currency shall be calculated based on the
relevant currency exchange rate in effect on the date such Indebtedness was
incurred, in the case of term Indebtedness, or first committed, in the case of
revolving credit Indebtedness; provided that if such Indebtedness is incurred
to refinance other Indebtedness denominated in a foreign currency, and such
refinancing would cause the applicable U.S. dollar-denominated restriction to
be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated restriction shall
be deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced.
(e) The accrual of interest, the accretion or amortization of original
issue discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of preferred
stock as Indebtedness due to a change in accounting principles, and the payment
of dividends on Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09; provided, in each such case, that the amount of any such accrual,
accretion or payment is included in Consolidated Interest Expense of the
Company as accrued. Notwithstanding any other provision of this Section 4.09,
the maximum amount of Indebtedness that the Company or any Restricted
Subsidiary of the Company may incur pursuant to this Section 4.09 shall not be
deemed to be exceeded solely as a result of fluctuations in exchange rates or
currency values.
(f) The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other
Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on
the assets of the specified Person, the lesser of:
(A) the Fair Market Value of such assets at the date of determination;
And
(B) the amount of the Indebtedness of the other Person.
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Section 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of the Asset Sale at least equal to the Fair
Market Value of the assets or Equity Interests issued or sold or otherwise
disposed of;
(2) at least 75% of the consideration received in the Asset Sale by the
Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents. For purposes of this provision, each of the following will be
deemed to be cash:
(A) any liabilities, as shown on the most recent consolidated balance
sheet, of the Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes
or any Note Guarantee) that are assumed by the transferee of any such assets;
(B) any securities, notes or other obligations received by the Company
or any such Restricted Subsidiary from such transferee that are, within 180
days following the closing of the related Asset Sale, converted by the Company
or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of
the cash or Cash Equivalents received in that conversion;
(C) any stock or assets of the kind referred to in clauses (6), (7) or
(8) of Section 4.10(b) hereof; and
(D) except in the case of an Asset Sale that constitutes a Sale of
Collateral or a Sale of a Guarantor, any Designated Non-cash Consideration
received by the Company or such Restricted Subsidiary having an aggregate Fair
Market Value, taken together with all other Designated Non-cash Consideration
received pursuant to this clause (D) that is at that time outstanding (with the
Fair Market Value of each item of Designated Non-cash Consideration being
measured at the time received and without giving effect to subsequent changes
in value), not to exceed 5% of the consolidated total assets of the Company and
its Restricted Subsidiaries (measured at the time of the receipt of such
Designated Non-cash Consideration); and
(3) in the case of an Asset Sale that constitutes a Sale of Collateral
or a Sale of a Guarantor, the Company (or the applicable Guarantor, as the case
may be) deposits the Net Proceeds therefrom as collateral in a segregated
account or accounts (a "Collateral Proceeds Account") held by the Collateral
Trustee or its agent to secure all Secured Obligations pursuant to arrangements
reasonably satisfactory to the Collateral Trustee; provided that the
obligations under this clause (3) shall be suspended for so long as (a) no
Default or Event of Default has occurred and is continuing and (b) the Company
has a long-term issuer credit rating of B+ or better from S&P and a long-term
obligations rating of B1 or better from Moody's (or, if either such entity
ceases to rate the Company for reasons outside of the control of the Company,
the equivalent investment grade credit rating from any other "nationally
recognized statistical rating organization" within the meaning of Rule 15c3-
1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement
agency).
66
(b) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale other than a Sale of Collateral or a Sale of a Guarantor, the Company (or
the applicable Restricted Su
bsidiary, as the case may be) may apply an amount
equal to such Net Proceeds:
(1) to repay Priority Lien Debt and, if such Priority Lien Debt is
revolving credit Indebtedness, to correspondingly reduce commitments with
respect thereto;
(2) to repay any Indebtedness secured by a Permitted Prior Lien;
(3) to repay Indebtedness and other Obligations of a Restricted
Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company
or another Restricted Subsidiary;
(4) to repurchase, redeem or defease Existing Indebtedness which has a
final maturity date (as in effect on the Issue Date) on or prior to September
15, 2015;
(5) to repay other Indebtedness of the Company (excluding Junior Lien
Debt, any Indebtedness owed to a Restricted Subsidiary of the Company or any
Indebtedness that is contractually subordinated to the Notes); provided that
the Company shall equally and ratably repay the First Lien Notes as provided in
Section 3.07 of the indenture governing the First Lien Notes, or by making an
offer (in accordance with the procedures set forth below for an Asset Sale
Offer) to all Holders of First Lien Notes to purchase the First Lien Notes at
100% of the principal amount thereof, plus the amount of accrued but unpaid
interest, if any, on the amount of First Lien Notes to the date of purchase;
(6) to acquire all or substantially all of the assets of, or any
Capital Stock of, another Permitted Business, if, after giving effect to any
such acquisition of Capital Stock, the Permitted Business is or becomes a
Restricted Subsidiary of the Company;
(7) to make a capital expenditure; or
(8) to acquire other assets that are used or useful in a Permitted
Business,
or enter into a binding commitment regarding clauses (6), (7) or (8) above;
provided that if such acquisition or expenditure in respect of such binding
commitment is not consummated on or before the 180th day following the
aforementioned 360-day period, and the Company or such Restricted Subsidiary
shall not have otherwise applied an amount equal to such Net Proceeds pursuant
to clauses (1)-(8) of this Section 4.08(b) on or before such 180th day, such
binding commitment shall be deemed not to have been a permitted application of
Net Proceeds.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale that constitutes a Sale of Collateral or a Sale of a Guarantor, the
Company (or the applicable Guarantor, as the case may be) may apply an amount
equal to such Net Proceeds:
(1) in the case of the sale of Collateral that constitutes ABL
Collateral, to repay Permitted ABL Debt and related Permitted ABL Debt
Obligations, if any;
(2) to purchase other long-term assets that would constitute Collateral;
(3) to purchase Capital Stock of another Permitted Business if, after
giving effect to such purchase, the Permitted Business becomes a Guarantor or
is merged into or consolidated with the Company or any Guarantor;
67
(4) to make a capital expenditure with respect to assets that
constitute Collateral;
(5) to acquire other assets that are used or useful in a Permitted
Business and that would constitute Collateral;
(6) to repay Priority Lien Debt and, if such Priority Lien Debt is
revolving credit Indebtedness, to correspondingly reduce commitments with
respect thereto; provided that unless such Priority Lien Debt has a maturity
date earlier than October 15, 2014 and was incurred to refinance, repurchase,
redeem or defease any Existing Notes, the Company shall equally and ratably
repay the First Lien Notes as provided in Section 3.07 of the indenture
governing the First Lien Notes, or by making an offer (in accordance with the
procedures set forth in Section 3.09 of the indenture governing the First Lien
Notes) to all Holders of First Lien Notes to purchase the First Lien Notes at
100% of the principal amount thereof, plus the amount of accrued but unpaid
interest, if any, on the amount of Notes to the date of purchase; or
(7) to repurchase, redeem or defease Existing Notes or to repay any
replacement financing thereof with a maturity date prior to September 15, 2015,
if after giving effect to such use of Net Proceeds, the Incremental Priority
Lien Capacity is greater than zero,
or enter into a binding commitment regarding clauses (2)-(5) above; provided
that if such acquisition or expenditure in respect of such binding commitment
is not consummated on or before the 180th day following the aforementioned 360-
day period, and the Company or such Restricted Subsidiary shall not have
otherwise applied an amount equal to such Net Proceeds pursuant to clauses (1)-
(5) of this paragraph on or before such 180th day, such binding commitment
shall be deemed not to have been a permitted application of Net Proceeds.
Notwithstanding any of the foregoing to the contrary, no amounts shall be
released from the Collateral Proceeds Account pursuant to this Section 4.10(c)
until the Issuer has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel stating that the release of such amounts and the application
thereof complies with the Indenture.
(d) The Company will not, and will not permit any Restricted Subsidiary
to, engage in any Asset Swap, unless: (1) in the event such Asset Swap involves
the transfer by the Company or any of its Restricted Subsidiaries of assets
having an aggregate Fair Market Value in excess of $50.0 million, the terms of
such Asset Swap have been approved by a majority of the members of the Board of
Directors of the Company; and (2) in the case of an Asset Swap involving a sale
or exchange of Collateral, the assets that are purchased with or obtained in
exchange for the Collateral also constitute Collateral.
(e) Pending the final application of an amount equal to any Net
Proceeds (other than Net Proceeds from any Sale of Collateral or Sale of a
Guarantor held in the Collateral Proceeds Account), the Company may temporarily
reduce revolving credit borrowings, if any, or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
(f) Any Net Proceeds from Asset Sales that are not applied or invested
as provided in Section 4.10(b) and (c) hereof will constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds (including any Excess Proceeds
held in the Collateral Proceeds Account) exceeds $75.0 million, within five
days thereof, the Company will make an Asset Sale Offer to all Holders of Notes
and all holders of other Secured Debt containing provisions similar to those
set forth in this Indenture and the indenture governing the First Lien Notes
with respect to offers to purchase or redeem with the proceeds of sales of
assets to purchase:
first, the maximum principal amount of First Lien Notes and other
Priority Lien Debt containing such provisions that may be purchased out of the
Excess Proceeds; and
68
second, to the extent of any remaining Excess Proceeds, the maximum
principal amount of Notes and other Junior Lien Debt containing such provisions
that may be purchased out of the remaining Excess Proceeds.
The offer price in any Asset Sale Offer will be equal to 100% of the
principal amount, plus accrued and unpaid interest to the date of purchase, and
will be payable in cash. If any Excess Proceeds remain after consummation of
an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose
not otherwise prohibited by this Indenture and the indenture governing the
First Lien Notes. If the aggregate principal amount of Notes and other Junior
Lien Debt tendered in such Asset Sale Offer exceeds the amount of Excess
Proceeds available for payments to holders of Junior Lien Debt, the Trustee
will select the Notes to be purchased on a pro rata basis, based on the amounts
tendered or required to be prepaid or redeemed. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.
(g) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to
the extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Section 4.10, the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under this Section 4.10 by virtue of such compliance.
Section 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
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 of the Company involving aggregate payments of consideration
in excess of $25.0 million (each, an "Affiliate Transaction"), unless:
(1) the Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(2) in the event of any Affiliate Transaction or series of related
Affiliate Transactions involving the transfer by the Company or any of its
Restricted Subsidiaries of assets having an aggregate Fair Market Value in
excess of (a) $50.0 million, the terms of such Affiliate Transaction have been
approved by a majority of the members of the Board of Directors of the Company
and by a majority of the disinterested members of the Board of Directors of the
Company and (b) $75.0 million, an opinion as to the fairness to the Company or
the relevant Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment
banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of Section 4.11(a) hereof:
(1) any agreement, arrangement or transaction with a current or former
officer, director, employee or consultant of the Company or any of its
Restricted Subsidiaries relating to compensation, perquisites or indemnities,
including without limitation any employment agreement, employee benefit plan,
officer or director indemnification agreement, consultant agreement or any
similar arrangement, entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and payments pursuant thereto;
69
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary
of the Company) that is an Affiliate of the Company solely because the Company
owns, directly or through a Restricted Subsidiary, an Equity Interest in, or
controls, such Person;
(4) any issuance of Equity Interests (other than Disqualified Stock) of
the Company to Affiliates of the Company;
(5) Restricted Payments that do not violate Section 4.07 hereof;
(6) sales or other transfers or dispositions of accounts receivable and
other related assets customarily transferred in an asset securitization
transaction involving accounts receivable to a Receivables Subsidiary in
connection with a Permitted Securitization Program and transactions between a
Receivables Subsidiary and any Person in which the Receivables Subsidiary has
an Investment;
(7) loans or advances to, or Guarantees of Indebtedness of, employees,
officers or directors made in the ordinary course of business of the Company or
any Restricted Subsidiary of the Company in an aggregate amount not in excess
of $15.0 million with respect to all loans, advances or Guarantees made since
the Issue Date;
(8) transaction or series of related transactions in which the Company
or any Restricted Subsidiary delivered to the Trustee a letter issued by an
accounting, appraisal or investment banking firm of national standing as to the
fairness to the Company or such Restricted Subsidiary of such transaction or
series of related transactions from a financial point of view or that such
transaction or series of related transactions are not materially less favorable
to the Company or the relevant Restricted Subsidiary, taken as a whole, than
those that would have been obtained in a comparable transaction by the Company
or such Restricted Subsidiary with an unrelated Person;
(9) transactions with customers, clients, suppliers or purchasers or
sellers of goods or services, in each case in the ordinary course of the
business of the Company and its Restricted Subsidiaries and otherwise in
compliance with the terms of this Indenture; provided that in the reasonable
determination of the Company, such transactions are on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person;
(10) payments by the Company and its Restricted Subsidiaries pursuant
to tax sharing agreements among the Company and its Restricted Subsidiaries on
customary terms to the extent attributable to the ownership or operation of the
Company and its Restricted Subsidiaries; and
(11) any agreement as in effect as of the Issue Date, or any amendment
thereto (so long as any such amendment is not disadvantageous to the Holders of
Notes when taken as a whole as compared to the applicable agreement as in
effect on the Issue Date).
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Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind (other than Permitted Liens) upon any of
their property or assets, now owned or hereafter acquired.
Section 4.13 [Intentionally Omitted].
Section 4.14 Corporate Existence.
Subject to Article 5 and Section 11.04 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect:
(1) its corporate existence, and the corporate, partnership or other
existence of each of its Guarantors, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Guarantor; and
(2) the rights (charter and statutory), licenses and franchises of the
Company and its Guarantors;
; provided, however, that the Company shall not be required to preserve any
such right, license or franchise of any of the Guarantors, or the corporate,
partnership or other existence of any of the Guarantors, if in the judgment of
the Company the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Holders of the
Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each Holder of Notes will have the
right to require the Company to repurchase all or any part (equal to $2,000 or
an integral multiple of $1,000 in excess thereof) of that Holder's Notes
pursuant to a Change of Control Offer (a "Change of Control Offer") at a
purchase price in cash equal to 101% of the aggregate principal amount of Notes
repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased
to the date of purchase, subject to the rights of Holders of Notes on the
relevant record date to receive interest due on the relevant interest payment
date (the "Change of Control Payment"). Within 30 days following any Change of
Control, the Company will mail a notice to each Holder:
(1) describing the transaction or transactions that constitute the
Change of Control and offering to repurchase such Holder's Notes at a purchase
price equal to the Change of Control Payment; and
(2) stating the repurchase date, which date will 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");
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with the Change
of Control provisions of this Indenture, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under the Change of Control provisions of this
Indenture by virtue of such compliance.
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(b) On the Change of Control Payment Date, the Company will, to the
extent lawful:
(1) accept for payment all Notes or portions of Notes 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 of Notes properly tendered;
And
(3) deliver or cause to be delivered to the Trustee the Notes properly
accepted together with an Officers' Certificate stating the aggregate principal
amount of Notes or portions of Notes being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes properly
tendered the Change of Control Payment for such Notes, and the Trustee will
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.
(c) Notwithstanding anything to the contrary contained herein, the
Company will not be required to make a Change of Control Offer upon a Change of
Control if (1) 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 and
purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer, or (2) notice of redemption has been given pursuant to Section
3.03 hereof, unless and until there is a default in payment of the applicable
redemption price.
(d) Notwithstanding anything to the contrary contained herein, a Change
of Control Offer may be made in advance of a Change of Control, conditional
upon the consummation of such Change of Control, if a definitive agreement is
in place for the Change of Control at the time the Change of Control Offer is
made.
Section 4.16 Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or
creates another Material Domestic Subsidiary after the Issue Date, or if any
Subsidiary that is not a Material Domestic Subsidiary becomes a Material
Domestic Subsidiary after the Issue Date, then that acquired, created or other
new Material Domestic Subsidiary shall become a Guarantor and the Company will
cause such acquired, created or other new Material Domestic Subsidiary to
provide a Note Guarantee pursuant to a supplemental indenture and, if
applicable, execute Security Documents, in each case in form and substance
reasonably satisfactory to the Trustee and deliver an Opinion of Counsel
reasonably satisfactory to the Trustee within 20 Business Days of the date on
which it was acquired, created or became a Material Domestic Subsidiary to the
effect that such supplemental indenture and, if applicable, such Security
Documents, have been duly authorized, executed and delivered by that Material
Domestic Subsidiary and each constitutes a valid and binding agreement of that
Material Domestic Subsidiary, each enforceable in accordance with its terms
(subject to customary exceptions). The form of such supplemental indenture is
attached as Exhibit F hereto.
Section 4.17 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments
owned by the Company and its Restricted Subsidiaries in the Subsidiary
designated as Unrestricted will be deemed to be an Investment made as of the
time of the designation and will reduce the amount available for Restricted
Payments under Section 4.07 hereof or under one or more clauses of the
definition of Permitted Investments, as determined by the Company. That
designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary. The Board of Directors of the Company may redesignate
any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation
would not cause a Default.
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Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of a resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.07 hereof
or under one or more clauses of the definition of Permitted Investments. If,
at any time, any Unrestricted Subsidiary would fail to meet the preceding
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company will be in
default of such covenant. The Board of Directors of the Company may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the
Company; provided that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary, and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period or the Company would have an
Interest Coverage Ratio greater than the Interest Coverage Ratio for the
Company immediately prior to such designation; and (2) no Default or Event of
Default would be in existence following such designation.
Section 4.18 Changes in Covenants When Notes Rated Investment Grade.
If on any date following the Issue Date:
(1) the Notes are rated BBB- or better by S&P and Baa3 or better by
Moody's (or, if either such entity ceases to rate the Notes for reasons outside
of the control of the Company, the equivalent investment grade credit rating
from any other "nationally recognized statistical rating organization" within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the
Company as a replacement agency); and
(2) no Default or Event of Default shall have occurred and be
continuing,
then, beginning on such date and continuing at all times thereafter regardless
of any subsequent changes in the rating of the Notes, the covenants contained
in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.17 and 5.01(a)(4) of this Indenture
will no longer be applicable to the Notes; provided, however, that those
provisions of Section 4.10 relating to the Sale of Collateral or the Sale of a
Guarantor and the application of the proceeds therefrom will remain in full
force and effect and will not be suspended.
Section 4.19 Rights of Notes Relative to Other Series of Secured Debt
For so long as any Notes remain outstanding, in the event the Company or
any of its Affiliates pays a consent fee to holders of any other Series of
Junior Lien Debt in connection with the amendment, modification, supplement or
waiver of any covenants included in such other Series of Junior Lien Debt, the
Company shall pay Holders of Notes (for each $1,000 principal amount of Notes)
an amount equal to the consent fees that are paid for each $1,000 principal
amount of such other Series of Junior Lien Debt. Such amounts, without
interest, would be paid to Holders of record of Notes on the first interest
payment date following the payment of such consent fees.
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ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of Assets.
(a) The Company shall not, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey, or otherwise dispose of
all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition has been made is a Person organized or existing
under the laws of the United States, any state of the United States or the
District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the
obligations of the Company under the Note Documents pursuant to agreements
reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default
exists;
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, conveyance or other disposition has been made would, on
the date of such transaction after giving pro forma effect thereto and any
related financing transactions as if the same had occurred at the beginning of
the applicable four-quarter period:
(A) be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Interest Coverage Ratio test set forth in Section 4.09(a)
hereof; or
(B) have had an Interest Coverage Ratio equal to or greater than the
actual Interest Coverage Ratio for the Company immediately prior to such
transaction; and
(5) the Company or the surviving entity, as the case may be, delivers
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that the consolidation, merger, sale, assignment, transfer, conveyance or other
disposition and the supplemental indenture, if any, comply with this Indenture.
In addition, the Company will not, directly or indirectly, lease all or
substantially all of the properties and assets of it and its Restricted
Subsidiaries, taken as a whole, in one or more related transactions, to any
other Person.
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(b) This Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of
reorganizing the Company in another jurisdiction; or
(2) any consolidation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among the Company
and its Restricted Subsidiaries that are Guarantors.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, 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, assignment, transfer, lease,
conveyance or other disposition, the provisions of this Indenture referring to
the "Company" shall refer instead to the successor Person 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 predecessor Company shall not
be relieved from the obligation to pay the principal of, premium on, if any, or
interest, if any, on, the Notes except in the case of a sale of all of the
Company's assets in a transaction that is subject to, and that complies with
the provisions of, Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a) Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of interest on the
Notes;
(2) default in the payment when due (at maturity, upon redemption or
otherwise) of the principal of, or premium, if any, on, the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Sections 4.15 or 5.01 hereof;
(4) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Section 4.10 hereof for 30 days after notice to
the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class;
(5) failure by the Company or any of its Restricted Subsidiaries to
comply with the provisions of Section 4.03 hereof for 120 days after notice to
the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class;
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(6) failure by the Company or any of its Restricted Subsidiaries for 60
days after notice to the Company by the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding voting as a single
class to comply with any of the other agreements or covenants in this
Indenture;
(7) 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 Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries), whether such Indebtedness or Guarantee now
exists, or is created after the date of this Indenture, if that default:
(A) is caused by a failure to pay principal on such Indebtedness at its
stated final maturity (after giving effect to any applicable grace periods
provided in such Indebtedness (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
$50.0 million or more;
(8) failure by the Company or any of its Significant Subsidiaries to
pay final judgments with respect to which no appeal may be or has been taken,
entered by a court or courts of competent jurisdiction aggregating in excess of
$50.0 million (net of any amounts that a reputable and creditworthy insurance
company has acknowledged liability for in writing), which judgments are not
paid, discharged or stayed, for a period of 60 days, and in the event such
judgment is covered by insurance, an enforcement proceeding has been commenced
by any creditor upon such judgment or decree which is not promptly stayed;
(9) the occurrence of any of the following:
(a) any Secured Debt Document is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in
full force and effect, other than in accordance with the terms of the relevant
Secured Debt Document and this Indenture; provided, that it will not be an
Event of Default under this clause 9(a) if the sole result of the failure of
one or more Security Documents to be fully enforceable is that any Priority
Lien or Permitted ABL Lien purported to be granted under such Security
Documents on Collateral ceases to be enforceable or perfected; or
(b) except as permitted by this Indenture, any Junior Lien
purported to be granted under any Security Document on Collateral, individually
or in the aggregate, having a Fair Market Value in excess of $50.0 million
ceases to be an enforceable and perfected second-priority Lien, subject only to
Priority Liens and Permitted Prior Liens; or
(c) the Company or any Guarantor, or any Person acting on
behalf of any of them, denies or disaffirms, in writing, any obligation of the
Company or any Guarantor set forth in or arising under any Secured Debt
Document;
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(10) the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary pursuant to or
within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due;
(11) 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 Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary or for all or substantially all of the property of the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
or
(12) except as permitted by this Indenture or the indenture governing
the First Lien Notes, any Note Guarantee is held in any judicial proceeding to
be unenforceable or invalid or ceases for any reason to be in full force and
effect, or any Guarantor, or any Person acting on behalf of any Guarantor,
denies or disaffirms its obligations under its Note Guarantee.
(b) In the event of any Event of Default specified in clause (7) of
Section 6.01(a) hereof, such Event of Default and all consequences thereof
shall be annulled, waived and rescinded, automatically and without any action
by the Trustee or the Holders, if within 20 days after such Event of Default
arose:
(1) the Indebtedness or guarantee that is the basis for such Event of
Default has been discharged;
(2) Holders thereof have rescinded or waived the acceleration, notice
or action (as the case may be) giving rise to such Event of Default; or
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(3) the default that is the basis for such Event of Default has been
cured.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (10) or (11) of
Section 6.01(a) hereof, with respect to the Company, any Restricted Subsidiary
of the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
immediately without further action or notice. If any other Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately; provided that so long as any
Indebtedness permitted to be incurred pursuant to this Indenture under a bank
facility providing for term loans or revolving loans shall be outstanding, no
such acceleration shall be effective until the earlier of (1) the acceleration
of such Indebtedness under such bank facility or (2) five Business Days after
the giving of written notice of such acceleration to the Company and the
administrative agent (or any other agent or representative) with respect to
such bank facility.
Upon any such declaration, the Notes shall become due and payable
immediately.
The Holders of at least a majority in aggregate principal amount of the
then outstanding Notes by written notice to the Trustee may, on behalf of all
of the Holders of all the Notes, rescind an acceleration and its consequences
hereunder, if the rescission would not conflict with any judgment or decree and
if all existing Events of Default (except nonpayment of principal of, premium
on, if any, or interest, if any, on the Notes that has become due solely
because of the acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may,
subject to the Collateral Trust Agreement, pursue any available remedy to
collect the payment of principal of, premium on, if any, or interest, if any,
on, the Notes or to enforce the performance of any provision of the Notes or
this Indenture.
Subject to the Collateral Trust Agreement, 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 Trustee or any Holder of
a Note 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.
The Holders of at least a majority in aggregate principal amount of the
then outstanding Notes 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 hereunder, except a continuing Default or Event of Default in
the payment of principal of, premium on, if any, interest, if any, on, the
Notes (including in connection with an offer to purchase); provided, however,
that the Holders of at least a majority in aggregate principal amount of the
then outstanding Notes may rescind an acceleration and its consequences
pursuant to Section 6.02, including any related payment default that resulted
from such acceleration. 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.
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Section 6.05 Control by Majority.
Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it consistent with the Collateral Trust Agreement.
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 of Notes or that may involve the Trustee in personal
liability.
Section 6.06 Limitation on Suits.
No Holder of a Note may pursue any remedy with respect to this
Indenture or the Notes unless:
(1) such Holder has previously given to the Trustee written notice that
an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee security or indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) during such 60-day period, Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with such request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note or holder of other Priority Lien Debt.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, premium on, if any, or
interest, if any, on, the Note, on or after the respective due dates expressed
in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder; provided
that a Holder shall not have the right to institute any such suit for the
enforcement of payment if and to the extent that the institution or prosecution
thereof or the entry of judgment therein would, under applicable law, result in
the surrender, impairment, waiver or loss of the Lien of this Indenture upon
any property subject to such Lien.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof
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 of, premium on, if any, or interest, if any, 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.
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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 of the Notes 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 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 that the Holders 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, 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 6, 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 hereof, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, if any, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and interest, if any, respectively;
and
Third: 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 of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as 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 6.11 shall not apply to a suit by the Trustee, a suit
by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of
more than 10% in aggregate principal amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will 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;
and
(2) 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. However, the
Trustee will examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) 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:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) the Trustee will 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; and
(3) the Trustee will 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 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend
or risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will 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.
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Section 7.02 Rights of Trustee.
(a) 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.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will 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 and the written advice of such counsel or any Opinion of Counsel will
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.
(c) The Trustee may act through its attorneys and agents and will not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee reasonable
indemnity or security satisfactory to it against the losses, liabilities and
expenses that might be incurred by it in compliance with such request or
direction.
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 any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (if this Indenture has been qualified under
the TIA) or resign. Any Agent may do the same with like rights and duties.
The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee will 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 upon the Company's direction under any provision of this
Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will 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.
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee will mail
to Holders of Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in
payment of principal of, premium on, if any, interest, if any, 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 the Holders of the Notes.
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Section 7.06 [Intentionally Omitted.]
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will 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
will include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
(b) The Company and the Guarantors will indemnify the Trustee against
any and all losses, liabilities or expenses 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 enforcing this Indenture against
the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not
relieve the Company or any of the Guarantors of their obligations hereunder.
The Company or such Guarantor will defend the claim and the Trustee will
cooperate in the defense. The Trustee may have separate counsel and the
Company will pay the reasonable fees and expenses of such counsel. Neither the
Company nor any Guarantor need pay for any settlement made without its consent,
which consent will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's and the Guarantors' payment obligations in
this Section 7.07, the Trustee will 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 of, premium on, if any, or interest, if any, on, particular Notes.
Such Lien will survive the satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(a)(10) or (11) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of a
majority in aggregate principal amount of the then outstanding Notes may remove
the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10 hereof;
(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.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
(d) 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 aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) 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 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its
succession to Holders. The retiring Trustee will 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 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof will 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 will be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus of at least
$100.0 million as set forth in its most recent published annual report of
condition.
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company and the Guarantors will be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes (including the Note Guarantees), which will thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in clauses (1) and (2) below, and
to have satisfied all their other obligations under such Notes, the Note
Guarantees and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following provisions which will survive until otherwise
terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in
respect of the principal of, or interest or premium, if any, on, such Notes
when such payments are due from the trust referred to in Section 8.05 hereof;
(2) the Company's obligations with respect to such Notes under
Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's and the Guarantors' obligations in
connection therewith; and
(4) this Article 8 (excluding the provisions of this Article 8 with
respect to Covenant Defeasance).
Subject to compliance with this Article 8, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.15, 4.16, 4.17, 4.18 and 4.19
and Section 5.01(a)(4) hereof with respect to the outstanding Notes on and
after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes will 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 will continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes will not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will
have no liability in respect of any term, condition or limitation set forth in
any such covenant, 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 will not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes and Note Guarantees will be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(a)(3), (4), (5), (6), (7), (8),
(9) and (12) hereof will not constitute Events of Default.
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Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized investment bank, appraisal firm, or firm
of independent public accountants, to pay the principal of, premium on, if any,
and interest on, the outstanding Notes on the stated date for payment thereof
or on the applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to such stated date for payment or
to a particular redemption date;
(2) in the case of an election under Section 8.02 hereof, the Company
must deliver to the Trustee an Opinion of Counsel 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 of this Indenture, there has been a change in the
applicable federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
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 had not occurred;
(3) in the case of an election under Section 8.03 hereof, the Company
must deliver to the Trustee an Opinion of Counsel confirming that, subject to
customary assumptions and exclusions, 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 on the
same amounts, 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 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 the granting of Liens in connection therewith);
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(5) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit or the granting of Liens in connection
therewith);
(6) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding any creditors of
the Company or others; and
(7) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, which opinion may be subject to customary
assumptions and exclusions, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have been complied
with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable 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 hereof in respect of the outstanding Notes
will 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 will pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof 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.
Notwithstanding anything in this Article 8 to the contrary, the Trustee
will deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof 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) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06 Repayment to 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, 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) will be
discharged from such trust; and the Holder of such Note will thereafter be
permitted to 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, will 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 New York Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which will 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.
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Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, 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 and the Guarantors' obligations under this
Indenture and the Notes and the Note Guarantees will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof 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 hereof, 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 will 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.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, without the consent of
any Holder of Notes, the Company, the Guarantors and the Trustee may amend or
supplement this Indenture, the Notes or the Note Guarantees:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to provide for the assumption of the Company's or a Guarantor's
obligations to the Holders of the Notes and Note Guarantees in the case of a
merger or consolidation or sale of all or substantially all of the Company's or
such Guarantor's assets, as applicable;
(4) 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 or surrender any right or power conferred
upon the Company;
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Notes, the Note
Guarantees or the Security Documents to any provision of the "Description of
New Secured Notes" section of the Company's Confidential Offering Circular and
Consent Solicitation Statement dated June 30, 2009, relating to the initial
offering of the Notes, to the extent that such provision in that "Description
of New Secured Notes" was intended (as evidenced by an Officers' Certificate)
to be a verbatim recitation of a provision of this Indenture, the Notes, the
Note Guarantees or the Security Documents;
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(7) to provide for the issuance of Additional Notes of the same series
in accordance with the limitations set forth in this Indenture as of the Issue
Date;
(8) to provide for the appointment of a successor Trustee; provided
that the successor Trustee is otherwise qualified and eligible to act as such
under the terms of this Indenture or to provide for a successor or replacement
Collateral Trustee under the Security Documents;
(9) to make, complete, or conform any grant of Collateral permitted or
required by this Indenture or any of the Security Documents or any release,
termination or discharge of Collateral that becomes effective as set forth in
this Indenture or any of the Security Documents; or
(10) to provide an additional Note Guarantee with respect to the Notes
or to grant any Lien for the benefit of the Holders of the Notes.
In addition, the Collateral Trustee and the Trustee may amend the
Security Documents to add additional secured parties to the extent Liens
securing obligations held by such parties are permitted under this Indenture
and that after so securing any such additional secured parties, the amount of
Priority Lien Debt does not exceed the Priority Lien Cap and the amount of
Junior Lien Debt, either by itself or when taken together with all outstanding
Priority Lien Debt, does not exceed the Secured Debt Cap.
The consent of the Holders is not necessary under this Indenture to
approve the particular form of any proposed amendment or supplement. It is
sufficient if such consent approves the substance of the proposed amendment or
supplement.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee will join with the Company and
the Guarantors in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee will not be obligated to enter into such amended or supplemental
indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture or the Notes or the Note
Guarantees with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, or premium or interest on, the Notes,
except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture or the Notes or
the Note Guarantees may be waived with the consent of the Holders of a majority
in aggregate principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, tender offer or
exchange offer for, or purchase of, the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee will join with the Company and the
Guarantors in the execution of such amended or supplemental indenture unless
such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but will not be obligated to, enter into
such amended or supplemental Indenture.
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It is not necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company will mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, will not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture, the Notes or the
Note Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 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 or waive any of the provisions with respect to the redemption of the
Notes (except as provided above with respect to Sections 3.09, 4.10 and 4.15
hereof);
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal of,
or interest or premium, if any, on, the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding 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 Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, or interest or premium, if any, on, the Notes;
(7) waive a redemption payment with respect to any Note (other than a
payment required by Sections 3.09, 4.10 or 4.15 hereof);
(8) release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture, except in accordance with the terms of this
Indenture; or
(9) make any change in the preceding amendment and waiver provisions.
Notwithstanding any of the foregoing to the contrary, any amendment to,
or waiver of, the provisions of this Indenture that has the effect of releasing
all or substantially all of the Collateral from the Liens securing the Notes
will require the consent of the Holders of at least 66-2/3% in aggregate
principal amount of the Notes then outstanding (but only to the extent any such
consent is required under the Collateral Trust Agreement).
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Section 9.03 [Intentionally Omitted.]
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note 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 of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the amendment, supplement or waiver
becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amended or supplemental indenture until the Board of
Directors of the Company approves it. In executing any amended or
supplemental indenture, the Trustee will be entitled to receive and (subject to
Section 7.01 hereof) will be fully protected in relying upon, in addition to
the documents required by Section 13.04 hereof, an Officers' Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture.
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01 Equal and Ratable Sharing of Collateral by Holders of Secured
Debt.
Notwithstanding: (1) anything to the contrary contained in the Security
Documents; (2) the time of incurrence of any Series of Junior Lien Debt; (3)
the order or method of attachment or perfection of any Liens securing any
Series of Junior Lien Debt; (4) the time or order of filing or recording of
financing statements or other documents filed or recorded to perfect any
Junior Lien upon any Collateral; (5) the time of taking possession or control
over any Collateral; (6) that any Junior Lien may not have been perfected or
may be or have become subordinated, by equitable subordination or otherwise, to
any other Lien; or (7) the rules for determining priority under any law
governing relative priorities of Liens, all Junior Liens granted at any time by
the Issuer or any Guarantor shall secure, equally and ratably, all present and
future Junior Lien Obligations.
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The provisions in the immediately preceding paragraph are intended for
the benefit of, and shall be enforceable as a third party beneficiary by, each
present and future holder of Junior Lien Obligations, each present and future
Junior Lien Representative and the Collateral Trustee as holder of Junior
Liens. The Junior Lien Representative of each future Series of Junior Lien Debt
shall be required to deliver a Lien Sharing and Priority Confirmation to the
Collateral Trustee and each other Junior Lien Representative at the time of
incurrence of such Series of Junior Lien Debt.
Section 10.02 Ranking of Junior Liens.
(a) Notwithstanding (1) anything to the contrary contained in the
Security Documents; (2) the time of incurrence of any Series of Secured Debt;
(3) the order or method of attachment or perfection of any Liens securing any
Series of Secured Debt; (4) the time or order of filing or recording of
financing statements or other documents filed or recorded to perfect any Lien
upon any Collateral; (5) the time of taking possession or control over any
Collateral; (6) that any Priority Lien may not have been perfected or may be or
have become subordinated, by equitable subordination or otherwise, to any other
Lien; or (7) the rules for determining priority under any law governing
relative priorities of Liens, all Junior Liens at any time granted by the
Company or any Guarantor shall be subject and subordinate to all Priority Liens
securing Priority Lien Obligations.
(b) the provisions described in Section 10.02(a) above are intended for
the benefit of, and will be enforceable as a third party beneficiary by, each
present and future holder of Priority Lien Obligations, each present and future
Priority Lien Representative and the Collateral Trustee as holder of Priority
Liens.
(c) The Junior Lien Representative of each future Series of Junior Lien
Debt, if any, shall deliver a Lien Sharing and Priority Confirmation to the
Collateral Trustee and each Secured Debt Representative at the time of
incurrence of such Series of Junior Lien Debt.
Section 10.03 Security Documents.
(a) The due and punctual payment of the principal of, premium on, if
any, and interest, on, the Notes when and as the same shall be due and payable,
whether on an interest payment date, at maturity, by acceleration, repurchase,
redemption or otherwise, and interest on the overdue principal of, premium on,
if any, and interest (to the extent permitted by law), on the Notes and
performance of all other obligations of the Company to the Holders of Notes or
the Trustee under this Indenture and the Notes (including, without
limitation, the Note Guarantees), according to the terms hereunder or
thereunder, are secured as provided in the applicable Security Documents which
the Company has entered into simultaneously with the execution of this
Indenture. Each Holder of Notes, by its acceptance thereof, consents and
agrees to the terms of any applicable Security Documents (including, without
limitation, the provisions providing for foreclosure and release of Collateral)
as the same may be in effect or may be amended from time to time in accordance
with its terms and authorizes and directs the Collateral Trustee to enter into
the Pledge Agreements, the Collateral Trust Agreement and any other applicable
Security Documents and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Company will deliver to the Trustee
copies of all documents delivered to the Collateral Trustee pursuant to the
Security Documents, and will do or cause to be done all such acts and things as
may be necessary or proper, or as may be required by the provisions of the
Security Documents, to assure and confirm to the Trustee and the Collateral
Trustee the security interest in the Collateral contemplated hereby, by the
Security Documents or any part thereof, as from time to time constituted, so as
to render the same available for the security and benefit of this Indenture and
of the Notes secured hereby, according to the intent and purposes herein
expressed. The Company will take, and will cause its Subsidiaries to take,
upon request of the Trustee, any and all actions reasonably required to cause
the Security Documents to create and maintain, as security for the Obligations
of the Company hereunder, a valid and enforceable perfected second-priority
Lien in and on all the Collateral, in favor of the Collateral Trustee for the
benefit of the Holders of Notes, superior to and prior to the rights of all
third Persons and subject to no Liens other than Priority Liens and Permitted
Prior Liens.
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(b) The Company and each of the Guarantors agrees to perform their
respective obligations under the Security Documents, as the same may in effect
from time to time, in accordance with the terms thereof.
Section 10.04 Release of Collateral.
(a) The Collateral Trustee's Liens upon the Collateral will no longer
secure the Notes outstanding under this Indenture or any other Obligations
under this Indenture, and the right of the Holders of the Notes and such
Obligations to the benefits and proceeds of the Collateral Trustee's Liens on
the Collateral will terminate and be discharged:
(1) upon satisfaction and discharge of this Indenture in accordance
with the provisions set forth in Article 12;
(2) upon a Legal Defeasance or Covenant Defeasance of the Notes in
accordance with the provisions set forth in Article 8;
(3) upon payment in full and discharge of all Notes outstanding under
this Indenture and all Obligations that are outstanding, due and payable under
this Indenture at the time the Notes are paid in full and discharged; or
(4) in whole or in part, with the consent of the Holders of the
requisite percentage of Notes in accordance with the provisions set forth in
Article 9.
(b) The Collateral Trustee's Liens upon the Collateral will be released
upon the terms and subject to the conditions set forth in Section 4.1 of the
Collateral Trust Agreement.
Section 10.05 Certificates of the Company.
(a) The Company will furnish to the Trustee and the Collateral Trustee,
prior to each proposed release of Collateral pursuant to an Asset Sale, an
Officers' Certificate, to the effect that such proposed release of Collateral
is in compliance with the terms of the Note Documents. The Trustee may, to the
extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive
evidence of compliance with the foregoing provision the appropriate statements
contained in such Officers' Certificate.
(b) The Company will furnish to the Trustee and the Collateral Trustee,
prior to each proposed release of Collateral from the Collateral Proceeds
Account, an Officers' Certificate and an Opinion of Counsel, which may be
rendered by internal counsel to the Company, to the effect that such proposed
release of Collateral is in compliance with the terms of the Note Documents.
The Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing provision the
appropriate statements contained in such documents.
Section 10.06 Authorization of Actions to Be Taken by the Trustee Under the
Security Documents.
Subject to the provisions of Section 7.01 and 7.02 hereof, the Trustee
may (but without any obligation to do so), in its sole discretion and without
the consent of the Holders of Notes, direct, on behalf of the Holders of Notes,
the Collateral Trustee to, take all actions it deems necessary or appropriate
in order to:
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(1) enforce any of the terms of the Security Documents; and
(2) collect and receive any and all amounts payable in respect of the
Obligations of the Company hereunder.
The Trustee will have power (but without any obligation) to institute
and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation
of the Security Documents or this Indenture, and such suits and proceedings as
the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders of Notes in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders of Notes
or of the Trustee).
Section 10.07 Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Security Documents, and to make further
distributions of such funds to the Holders of Notes according to the provisions
of this Indenture.
Section 10.08 Termination of Security Interest.
Upon the full and final payment and performance of all Obligations of
the Company under this Indenture and the Notes or upon Legal Defeasance,
Covenant Defeasance or satisfaction and discharge of this Indenture in
accordance with Article 8 or Article 12 hereof, the Trustee will, at the
request of the Company, deliver a certificate to the Collateral Trustee stating
that such Obligations have been paid in full, and instruct the Collateral
Trustee to release the Liens pursuant to this Indenture and the Security
Documents.
Section 10.09 Further Assurances; Insurance.
(a) The Company and each of the Guarantors shall do or cause to be done
all acts and things that may be required, or that the Collateral Trustee from
time to time may reasonably request, to assure and confirm that the Collateral
Trustee holds, for the benefit of the holders of Secured Obligations, duly
created and enforceable and perfected Liens upon the Collateral (including any
property or assets that are acquired or otherwise become Collateral after the
Notes are issued), in each case, as contemplated by, and with the Lien priority
required under, the Secured Debt Documents.
(b) Upon the reasonable request of the Collateral Trustee or any
Secured Debt Representative at any time and from time to time, the Company and
each of the Guarantors will promptly execute, acknowledge and deliver such
additional Security Documents, instruments, certificates, notices and other
documents, and take such other actions as may be reasonably required, or that
the Collateral Trustee may reasonably request, to create, perfect, protect,
assure or enforce the Liens and benefits intended to be conferred thereby, in
each case as contemplated by the Secured Debt Documents for the benefit of the
holders of Secured Obligations.
94
(c) The Company and the Guarantors will (1) keep their properties
adequately insured at all times by financially sound and reputable insurers;
(2) maintain such other insurance, to such extent and against such risks (and
with such deductibles, retentions and exclusions), including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or
death or property damage occurring upon, in, about or in connection with the
use of any properties owned, occupied or controlled by them; (3) maintain such
other insurance as may be required by law; and (4) maintain such other
insurance as may be required by the Security Documents.
(d) Upon the request of the Collateral Trustee, the Company and the
Guarantors will furnish to the Collateral Trustee full information as to their
property and liability insurance carriers. Holders of Secured Obligations, as
a class, shall be named as additional insureds on such insurance policies of
the Company and the Guarantors as are required by the Collateral Trust
Agreement, and the Collateral Trustee shall be named as loss payee as its
interests may appear, with 30 days' notice of cancellation or material change,
on all property and casualty insurance policies of the Company and the
Guarantors.
Section 10.10 Relative Rights.
Nothing in the Note Documents shall:
(1) (a) impair, as between the Company and the Holders of the Notes, the
obligation of the Company to pay principal, premium, if any, and interest on
the Notes in accordance with their terms or any other obligation of the Company
or any Guarantor under the Note Documents for the Notes or (b) impair, as
between the Company and the Holders of the First Lien Notes, the obligation of
the Company to pay principal, premium, if any, and interest on the First Lien
Notes at the Stated Maturity thereof in accordance with their terms (but other
obligations of the Company and the Guarantors under the Note Documents for the
First Lien Notes may be impaired by the Note Documents for the Notes);
(2) affect the relative rights of holders of Notes as against any other
creditors of the Company or any Guarantor (other than holders of Priority
Liens, Junior Liens, Permitted ABL Liens or Permitted Prior Liens);
(3) restrict the right of any Holder of Notes to sue for payments that are
then due and owing (but not enforce any judgment in respect thereof against any
Collateral to the extent specifically prohibited by the provisions of the
Collateral Trust Agreement);
(4) restrict or prevent any Holder of Notes or other Secured Obligations, the
Collateral Trustee or any other person from exercising any of its rights or
remedies upon a Default or Event of Default not specifically restricted or
prohibited by the Collateral Trust Agreement; or
(5) restrict or prevent any holder of Notes or other Secured Obligations, the
Trustee, the Collateral Trustee or any other person from taking any lawful
action in an insolvency or liquidation proceeding not specifically restricted
or prohibited by the Collateral Trust Agreement.
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ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:
(1) the principal of, premium on, if any, and interest, on, the Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, premium on,
if any, interest, if any, on, the Notes, if lawful, and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof
and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes
or any of such other obligations, that 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.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
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 provisions
hereof or thereof, the recovery 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 Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenant that this Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this
Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.
(d) Each Guarantor agrees that it will 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
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee. The
Guarantors will have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Note Guarantee.
96
Section 11.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Note Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor will be limited to the maximum amount that will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 11.01 hereof, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form attached as Exhibit E hereto will be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the Trustee and that this
Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 11.01 hereof will remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Note Guarantee set
forth in this Indenture on behalf of the Guarantors.
In the event that the Company or any of its Restricted Subsidiaries
creates or acquires any Material Domestic Subsidiary after the date of this
Indenture, if required by Section 4.16 hereof, the Company will cause such
Material Domestic Subsidiary to comply with the provisions of Section 4.16
hereof and this Article 11, to the extent applicable.
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 11.05 hereof, no Guarantor may
sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
(1) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(2) either:
97
(a) subject to Section 11.05 hereof, the Person acquiring the
property in any such sale or disposition or the Person formed by or surviving
any such consolidation or merger (if other than the Guarantor or the Company)
unconditionally assumes all the obligations of that Guarantor under its Note
Guarantee, this Indenture and the Collateral Trust Agreement, pursuant to a
supplemental indenture and appropriate Security Documents in form and substance
reasonably satisfactory to the Trustee; or
(b) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation, Section 4.10 hereof.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person will succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the Note
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 Note Guarantees so issued will in all respects have the same
legal rank and benefit under this Indenture as the Note Guarantees theretofore
and thereafter issued in accordance with the terms of this Indenture as though
all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses 2(a) and (b) above, nothing contained in this Indenture or in any of
the Notes will prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor, or will prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
Section 11.05 Releases.
(a) The Note Guarantee of a Guarantor will be released:
(1) in connection with any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, to a Person that is not (either before or after
giving effect to such transaction) the Company or a Restricted Subsidiary of
the Company, if the sale or other disposition does not violate Section 4.10
hereof;
(2) in connection with any sale or other disposition of Capital Stock
of any Guarantor to a Person that is not (either before or after giving effect
to such transaction) the Company or a Restricted Subsidiary of the Company if
the sale or other disposition does not violate Section 4.10 hereof and such
Guarantor ceases to be a Restricted Subsidiary of the Company as a result of
the sale or other disposition;
(3) upon designation of any Restricted Subsidiary that is a Guarantor
as an Unrestricted Subsidiary in accordance with the terms of this Indenture; or
(4) upon Legal Defeasance or Covenant Defeasance in accordance with
Article 8 hereof or satisfaction and discharge of this Indenture in accordance
with Article 12 hereof.
(b) Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Section 4.10 hereof, the Trustee will
execute any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.
98
(c) Any Guarantor not released from its obligations under its Note
Guarantee as provided in this Section 11.05 will remain liable for the full
amount of principal of, premium on, if any, and interest on, the Notes and for
the other obligations of any Guarantor under this Indenture as provided in this
Article 11.
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) all Notes that have been authenticated, except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for whose payment
money has been deposited in trust and thereafter repaid to the Company, have
been delivered to the Trustee for cancellation; or
(2)
(a) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a notice
of redemption or otherwise or will become due and payable within one year and
the Company or any Guarantor has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, without
consideration of any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest, if any, to the date of
maturity or redemption;
(b) no Default or Event of Default has occurred and is
continuing on the date of the deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit and the
granting of Liens in connection therewith) and the deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit and the granting of Liens in
connection therewith);
(c) the Company or any Guarantor has paid or caused to be paid
all sums payable by it under this Indenture; and
(d) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or on the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion
of Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.
99
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof
will survive. In addition, nothing in this Section 12.01 will be deemed to
discharge those provisions of Section 7.07 hereof, that, by their terms,
survive the satisfaction and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited
with the Trustee pursuant to Section 12.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium, if any,
interest, if any, for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01 hereof; provided that if the Company has made any
payment of principal of, premium on, if any, interest, if any, on, any Notes
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
Section 13.01 [Intentionally Omitted.]
Section 13.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
by first class mail (registered or certified, return receipt requested),
facsimile transmission or overnight air courier guaranteeing next day delivery,
to the others' address:
If to the Company and/or any Guarantor:
Unisys Corporation
Unisys Way
Blue Bell, Pennsylvania 19424
Facsimile No.: (215) 986-0622
Attention: Treasurer
With a copy to:
Unisys Corporation
Unisys Way
Blue Bell, Pennsylvania 19424
Facsimile No.: (215) 986-0624
Attention: General Counsel
100
If to the Trustee:
Deutsche Bank Trust Company Americas
Trust & Securities Services
60 Wall Street, MS-NYC60-2710
New York, New York 10005
Attention: Corporates Team Deal Manager - Unisys
Telephone No.: (908) 608-3191
Facsimile No.: (732) 578-4635
With a copy to:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
Trust & Securities Services
25 Deforest Avenue, MS SUM01-0105
Summit, New Jersey 07901
Attention: Corporates Team Deal Manager - Unisys
Telephone No.: (908) 608-3191
Facsimile No.: (732) 578-4635
The Company, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) will
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by o
vernight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Failure to mail a notice or communication to a Holder
or any defect in it will 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 will
mail a copy to the Trustee and each Agent at the same time.
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate with other Holders with respect to their rights
under this Indenture or the Notes.
Section 13.04 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:
101
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 13.05 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 satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which must include the statements set forth in Section 13.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture must include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(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 or she has made
such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 13.06 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 13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, will have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note
Guarantees, the Note Documents 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 13.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
Section 13.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
102
Section 13.10 Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of
the USA Patriot Act the Trustee, like all financial institutions, is required
to obtain, verify, and record information that identifies each person or legal
entity that establishes a relationship or opens an account with Deutsche Bank
Trust Company Americas. The parties to this Agreement agree that they will
provide the Trustee with such information as it may request in order for the
Trustee to satisfy the requirements of the USA Patriot Act.
Section 13.11 Successors.
All agreements of the Company in this Indenture and the Notes will bind
its successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 11.05 hereof.
Section 13.12 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 13.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 13.14 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 of this Indenture and will in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
Dated as of July 31, 2009
UNISYS CORPORATION
By: /s/ Scott A. Battersby
---------------------
Name: Scott A. Battersby
Title: Vice President and Treasurer
CONVERGENT, INC.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS AFRICA HOLDING, INC.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS AP INVESTMENT COMPANY I
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS CHINA LIMITED
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS DE CENTRO AMERICA, S.A.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS DE COLOMBIA, S.A.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS DEL PERU L.L.C.
By: Unisys Holding Corporation, as its sole member
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS HOLDING CORPORATION
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS ITEM PROCESSING SERVICES L.L.C.
By: Unisys Corporation, as its sole member
By: /s/ Scott A. Battersby
---------------------
Name: Scott A. Battersby
Title: Vice President and Treasurer
UNISYS JAPAN, LTD.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS NPL, INC.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS PHILIPPINES LIMITED
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS PUERTO RICO, INC.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS PULSEPOINT COMMUNICATIONS
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS SOUTH AMERICA L.L.C.
By: Unisys Holding Corporation, as its sole member
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Assistant Treasurer
UNISYS SUDAMERICANA CORPORATION
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS SUDAMERICANA LTDA.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS TECHNICAL SERVICES L.L.C.
By: Unisys Corporation, as its sole member
By: /s/ Scott A. Battersby
---------------------
Name: Scott A. Battersby
Title: Vice President and Treasurer
UNISYS WORLD SERVICES, INC.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
UNISYS WORLD TRADE, INC.
By: /s/ Edward A. Sarkisian
-----------------------
Name: Edward A. Sarkisian
Title: Vice President and Treasurer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By: Deutsche Bank National Trust Company
By: /s/ Cynthia J. Powell
---------------------
Name: Cynthia J. Powell
Title: Vice President
By: /s/ Irina Golovashchuk
----------------------
Name: Irina Golovashchuk
Title: Assistant Vice President
[Face of Note]
[Insert the Original Issue Discount Legend here, if applicable.]
CUSIP No. ____________
ISIN No. ____________
14 1/4% Senior Secured Notes due 2015
No. ___ $____________
UNISYS CORPORATION
promises to pay to ______________________________ or registered assigns,
the principal sum of __________________________________________________ DOLLARS
on September 15, 2015.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
IN WITNESS WHEREOF, UNISYS CORPORATION has caused this instrument to be duly
executed.
Dated: _____________, ____
UNISYS CORPORATION
By: __________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By: DEUTSCHE BANK NATIONAL TRUST COMPANY
By: ____________________________
Authorized Signatory
[Back of Note]
14 1/4% Senior Secured Notes due 2015
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Unisys Corporation, a Delaware corporation (the
"Company"), promises to pay or cause to be paid interest on the principal amount
of this Note at 14 1/4% per annum from ________________, 20[ ] until maturity.
The Company will pay interest semi-annually in arrears on March 15 and September
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"). Interest on the
Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
next succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be ________________, 20[ ].
Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the March 1 or September 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium, if any, or interest at the office or agency of the
Paying Agent and Registrar within the City and State of New York, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available funds will be required with
respect to principal of and interest, or premium, if any, on, all Global Notes
and all other Notes the Holders of which will have provided wire transfer
instructions to the Company or the Paying Agent. Such payment will be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company
Americas, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change the Paying Agent or Registrar without prior
notice to the Holders of the Notes. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
(4) INDENTURE AND SECURITY AGREEMENTS. The Company issued the Notes
under an Indenture dated as of July 31, 2009 (the "Indenture") among the
Company, the Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture. The Notes are subject to all such terms, and Holders
are referred to the Indenture for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
secured obligations of the Company. The Notes are secured by a pledge on the
Collateral pursuant to the Security Documents. The Indenture does not limit the
aggregate principal amount of Notes that may be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) At any time prior to September 15, 2012, the Company
may on any one or more occasions redeem up to 35% of the aggregate principal
amount of Notes issued under the Indenture, upon not less than 30 nor more than
60 days' notice, at a redemption price equal to 114.250% of the principal
amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the
date of redemption (subject to the rights of Holders of Notes on the relevant
record date to receive interest on the relevant Interest Payment Date), with
the net cash proceeds from one or more Equity Offerings by the Company;
provided that:
(A) at least 65% of the aggregate principal amount of Initial Notes
(excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and
(B) the redemption occurs within 90 days of the date of the closing of
such Equity Offering.
(b) At any time prior to September 15, 2012, the Company
may on any one or more occasions redeem all or a part of the Notes, upon not
less than 30 nor more than 60 days' notice, at a redemption price equal to 100%
of the principal amount of the Notes redeemed, plus the Applicable Premium as
of, and accrued and unpaid interest, if any, to, the applicable date of
redemption, subject to the rights of Holders of Notes on the relevant record
date to receive interest due on the relevant Interest Payment Date.
(c) Except pursuant to the preceding paragraphs, the Notes
will not be redeemable at the Company's option prior to September 15, 2012.
(d) On or after September 15, 2012, the Company may on any
one or more occasions redeem all or a part of the Notes, 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, if any, on the Notes redeemed, to the applicable date of redemption,
if redeemed during the twelve-month period beginning on September 15 of the
years indicated below, subject to the rights of Holders of Notes on the
relevant record date to receive interest on the relevant Interest Payment Date:
Year Percentage
- ---- ----------
2012 107.1250%
2013 103.5625%
2014 and thereafter 100.000%
Unless the Company defaults in the payment of the redemption price, interest
will cease to accrue on the Notes or portions thereof called for redemption on
the applicable redemption date.
(6) MANDATORY REDEMPTION. The Company is not required to make
mandatory redemption or sinking fund payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER. The Indenture provides that
upon the occurrence of a Change of Control or an Asset Sale and subject to
further limitations contained therein, the Company shall make an offer to
purchase outstanding Notes in accordance with the procedures set forth in the
Indenture.
(8) NOTICE OF REDEMPTION. At least 30 days but not more than 60 days
before a redemption date, the Company will mail or cause to be mailed, by first
class mail, a notice of redemption to each Holder whose Notes are to be redeemed
at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection
with a defeasance of the Notes or a satisfaction and discharge of the Indenture
pursuant to Articles 8 or 12 thereof. Notes and portions of Notes selected
will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof;
except that if all of the Notes of a Holder are to be redeemed or purchased,
the entire outstanding amount of Notes held by such Holder shall be redeemed or
purchased.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $2,000 and integral multiples of
$1,000 in excess thereof. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the 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, except for the unredeemed portion of any Note being redeemed
in part. Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the next succeeding Interest
Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as the owner of it for all purposes. Only registered Holders have
rights under the Indenture.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture, the Notes or the Note Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes, and any existing Default or Event of
Default or compliance with any provision of the Indenture or the Notes or the
Note Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes. Without the consent
of any Holder of Notes, the Indenture, the Notes or the Note Guarantees 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 or a Guarantor's
obligations to Holders of the Notes and Note Guarantees in case of a merger or
consolidation or sale of all or substantially all of the Company's or such
Guarantor's assets, as applicable, 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 under the Indenture of any Holder or
surrender any right or power conferred upon by the Company, to comply with
the requirements of the SEC in order to effect or maintain the qualification
of the Indenture under the TIA, to conform the text of the Indenture, the
Notes, the Note Guarantees or the Security Documents to any provision of the
"Description of New Secured Notes" section of the Company's Confidential
Offering Circular and Consent Solicitation Statement dated June 30, 2009,
relating to the initial offering of the Notes, to the extent that such
provision in that "Description of New Secured Notes" was intended to be a
verbatim recitation of a provision of the Indenture, the Notes, the Note
Guarantees or the Security Documents, which intent may be evidenced by an
Officers' Certificate to that effect, to provide for the issuance of
additional notes of the same series in accordance with the limitations set
forth in the Indenture, to provide for the appointment of a successor trustee
or collateral trustee, subject to certain conditions, to make, complete, or
conform any grant of Collateral permitted or required by the Indenture or any
of the Security Documents or any release, termination or discharge of
Collateral that becomes effective as set forth in the Indenture or any of
the Security Documents, or to provide an additional Note Guarantee with respect
to the Notes or to grant any Lien for the benefit of the Holders of the Notes.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in the
payment when due (at maturity, upon redemption or otherwise) of the principal
of, or premium, if any, on, the Notes, (iii) failure by the Company or any of
its Restricted Subsidiaries to comply with the provisions of Sections 4.15 or
5.01 of the Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries to comply with the provisions of Section 4.10 of the Indenture for
30 days after notice to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding voting as a
single class; (v) failure by the Company or any of its Restricted Subsidiaries
to comply with the provisions of Section 4.03 of the Indenture for 120 days
after notice to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding voting as a single
class; (vi) failure by the Company or any of its Restricted Subsidiaries for 60
days after notice to the Company by the Trustee or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding voting as a single
class to comply with any of the other agreements or covenants in the Indenture;
(vii) 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 Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created
after the date of this Indenture, if that default: (a) is caused by a failure
to pay principal on such Indebtedness at its stated final maturity (after
giving effect to any applicable grace periods provided in such Indebtedness (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 $50.0 million or more; (viii) failure
by the Company or any of its Significant Subsidiaries to pay final judgments
with respect to which no appeal may be or has been taken, entered by a court or
courts of competent jurisdiction aggregating in excess of $50.0 million (net of
any amounts that a reputable and creditworthy insurance company has
acknowledged liability for in writing), which judgments are not paid,
discharged or stayed, for a period of 60 days, and in the event such judgment
is covered by insurance, an enforcement proceeding has been commenced by any
creditor upon such judgment or decree which is not promptly stayed; (ix) the
occurrence of any of the following: (a) any Secured Debt Document is held in
any judicial proceeding to be unenforceable or invalid or ceases for any reason
to be in full force and effect, other than in accordance with the terms of the
relevant Secured Debt Document and the Indenture (provided, that it will not be
an Event of Default under this clause (a) if the sole result of the failure of
one or more Security Documents to be fully enforceable is that any Priority
Lien or Permitted ABL Lien purported to be granted under such Security
Documents on Collateral ceases to be enforceable or perfected); (b) except as
permitted by the Indenture, any Junior Lien purported to be granted under any
Security Document on Collateral, individually or in the aggregate, having a
Fair Market Value in excess of $50.0 million ceases to be an enforceable and
perfected second-priority Lien subject only to Priority Liens and Permitted
Prior Liens; or (c) the Company or any Guarantor, or any Person acting on
behalf of the Company or any Guarantor, denies or disaffirms, in writing, any
obligation of the Company or any Guarantor set forth in or arising under any
Secured Debt Document; (x) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary; and (xi) except as
permitted by the Indenture or the indenture governing the First Lien Notes, any
Note Guarantee is held in any judicial proceeding to be unenforceable or
invalid or ceases for any reason to be in full force and effect, or any
Guarantor, or any Person acting on behalf of any Guarantor, denies or
disaffirms its obligations under its Note Guarantee. In the case of an Event
of Default arising from certain events of bankruptcy or insolvency with
respect to the Company, any Restricted Subsidiary of the Company that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary, all
outstanding Notes will become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes may declare all the Notes to be due and payable
immediately; provided that so long as any Indebtedness permitted to be
incurred pursuant to the Indenture under any bank facility providing for term
loans or revolving loans shall be outstanding, no such acceleration shall be
effective until the earlier of (1) the acceleration of such Indebtedness under
such bank facility or (2) five Business Days after giving of written notice of
such acceleration to the Company and the administrative agent (or any other
agent or representative) with respect to such bank facility. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture and the
Collateral Trust Agreement. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. 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, if any, interest, if any) if it
determines that withholding notice is in their interest. The Holders of at
least a majority in aggregate principal amount of the then outstanding Notes
by written notice to the Trustee may, on behalf of the Holders of all the
Notes, rescind an acceleration or waive any existing Default or Event of
Default and its respective consequences under the Indenture, if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived (except a continuing Default or Event of
Default in the payment of principal of, premium on, if any, interest, if any,
on, the Notes (including in connection with an offer to purchase)). The
Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required, upon becoming
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 COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
(14) NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, will
have any liability for any obligations of the Company or the Guarantors under
the Notes, the Indenture, the Note Guarantees, the Note Documents 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.
(15) AUTHENTICATION. This Note will 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) 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.
(18) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Unisys Corporation
Unisys Way
Blue Bell, Pennsylvania 19424
Facsimile No.: (215) 986-3889
Attention: Corporate Treasurer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee's legal name)
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
to transfer this 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*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[ ] Section 4.10 [ ]Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$_______________
Date: _______________
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Date of Exchange
Amount of decrease in Principal Amount
of this Global Note
Amount of increase in Principal Amount
of this Global Note
Principal Amount
of this Global Note following such decrease (or increase)
Signature of authorized officer of Trustee or Custodian
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Unisys Corporation
Unisys Way
Blue Bell, Pennsylvania 19424
Deutsche Bank Trust Company Americas
Trust & Securities Services
60 Wall Street
MS-NYC60-2710
New York, New York 10005
Re: 14 1/4% Senior Secured Notes due 2015
Reference is hereby made to the Indenture, dated as of July 31, 2009
(the "Indenture"), among Unisys Corporation, as issuer (the "Company"), the
Guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest
in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note 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, and such
Transfer is in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Restricted Definitive Note and in the Indenture and the Securities
Act.
2. Check if Transferee will take delivery of a beneficial interest
in the Regulation S Global Note or a Restricted Definitive Note pursuant to
Regulation S. The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to
a Person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or
through the facilities of a designated offshore securities market and neither
such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is
not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
3. Check and complete if Transferee will take delivery of a
beneficial interest in the IAI Global Note or a Restricted Definitive Note
pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a subsidiary
thereof;
or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and
the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities
Act and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive
Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of
Exhibit D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the IAI Global Note and/or the Restricted Definitive Notes
and in the Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes and in
the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: _______________________
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) IAI Global Note (CUSIP _________); or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) IAI Global Note (CUSIP _________); or
(iv) Unrestricted Global Note (CUSIP _________); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Unisys Corporation
Unisys Way
Blue Bell, Pennsylvania 19424
Deutsche Bank Trust Company Americas
Trust & Securities Services
60 Wall Street
MS-NYC60-2710
New York, New York 10005
Re: 14 1/4% Senior Secured Notes due 2015
(CUSIP [ ])
Reference is hereby made to the Indenture, dated as of July 31, 2009
(the "Indenture"), among Unisys Corporation, as issuer (the "Company"), the
Guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in
a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act and (iv) the beneficial interest in an Unrestricted Global Note is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(c) Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest
is being acquired in compliance with any applicable blue sky securities laws
of any state of the United States.
(d) Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes
(a) Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Note issued will
continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Note and in the
Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
144A Global Note, Regulation S Global Note, IAI Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ______________________
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Unisys Corporation
Unisys Way
Blue Bell, Pennsylvania 19424
Deutsche Bank Trust Company Americas
Trust & Securities Services
60 Wall Street
MS-NYC60-2710
New York, New York 10005
Re: 14 1/4% Senior Secured Notes due 2015
Reference is hereby made to the Indenture, dated as of July 31, 2009
(the "Indenture"), among Unisys Corporation, as issuer (the "Company"), the
Guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) a beneficial interest in a Global Note, or
(b) a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Company a signed letter substantially in the form of this letter and,
if such transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance
with the Securities Act, (D) outside the United States in accordance with Rule
904 of Regulation S under the Securities Act, (E) pursuant to the provisions
of Rule 144 under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any Person purchasing the Definitive Note or beneficial interest in
a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
Name:
Title:
Dated: _______________________
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of July 31, 2009 (the "Indenture") among
Unisys Corporation, (the "Company"), the Guarantors party thereto and
Deutsche Bank Trust Company Americas, as trustee (the "Trustee"), (a) the due
and punctual payment of the principal of, premium on, if any, and interest
on, the Notes, whether at maturity, by acceleration, redemption or otherwise,
the due and punctual payment of interest on overdue principal of, premium on,
if any, and interest on, the Notes, if any, if lawful, and the due and
punctual performance of all other obligations of the Company to the Holders
or the Trustee all in accordance with the terms of the Indenture and (b) in
case of any extension of time of payment or renewal of any Notes or any of
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. The obligations
of the Guarantors to the Holders of Notes and to the Trustee pursuant to the
Note Guarantee and the Indenture are expressly set forth in Article 11 of the
Indenture and reference is hereby made to the Indenture for the precise terms
of the Note Guarantee.
Capitalized terms used but not defined herein have the meanings given
to them in the Indenture.
[NAME OF GUARANTOR(S)]
By:
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, among __________________ (the "Guaranteeing Subsidiary"), a
subsidiary of Unisys Corporation (or its permitted successor), a Delaware
corporation (the "Company"), the other Guarantors (as defined in the
Indenture referred to herein) and Deutsche Bank Trust Company Americas, as
trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of July 31, 2009 providing
for the issuance of 14 1/4% Senior Secured Notes due 2015 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiary shall
unconditionally guarantee all of the Company's Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Note
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees
to provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Note Guarantee and in the Indenture including but
not limited to Article 11 thereof.
4. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, will
have any liability for any obligations of the Company or the Guarantors under
the Notes, this Indenture, the Note Guarantees, the Note Documents 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.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed and attested, all as of the date first above written.
Dated: _______________,
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
UNISYS CORPORATION
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By: Deutsche Bank National Trust Company
By: _______________________________
Authorized Signatory
By: _______________________________
Authorized Signatory
Exhibit 12
UNISYS CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (UNAUDITED)
($ in millions)
Nine
Months
Ended Years Ended December 31
Sept. 30, ----------------------------------
2009 2008 2007 2006 2005 2004
-------- ---- ---- ---- ---- ----
Fixed charges
Interest expense $ 68.4 $ 85.1 $ 76.3 $ 77.2 $ 64.7 $ 69.0
Interest capitalized during
the period 5.3 9.0 9.1 9.9 15.0 16.3
Amortization of debt issuance
expenses 2.5 4.1 3.8 3.8 3.4 3.5
Portion of rental expense
representative of interest 38.0 50.6 55.9 56.7 60.9 61.6
----- ------ ------ ------ ------ -----
Total Fixed Charges 114.2 148.8 145.1 147.6 144.0 150.4
----- ------ ------ ------ ------ -----
Earnings
Income (loss) from continuing
operations before income taxes(1) 140.0 (64.5) 29.4 (242.2)(203.1) (85.5)
Add (deduct) the following:
Share of loss (income) of
associated companies - - - 4.5 (7.2) (14.0)
Amortization of capitalized
interest 9.1 16.1 14.5 13.7 12.9 11.7
----- ------ ------ ------ ------ -----
Subtotal 149.1 (48.4) 43.9 (224.0)(197.4) (87.8)
----- ------ ------ ------ ------ -----
Fixed charges per above 114.2 148.8 145.1 147.6 144.0 150.4
Less interest capitalized during
the period (5.3) (9.0) (9.1) (9.9) (15.0) (16.3)
----- ------ ------ ------ ------ ------
Total earnings (loss) $258.0 $ 91.4 $179.9 $(86.3)$(68.4)$ 46.3
====== ====== ====== ====== ====== ======
Ratio of earnings to fixed
charges 2.26 * 1.24 * * *
===== ====== ====== ====== ====== =====
(1) Amounts for the years 2004-2008 have been reclassified to reflect the
adoption of ACS 810-10.
* Earnings for the years ended December 31, 2008, 2006, 2005 and 2004 were
inadequate to cover fixed charges by $57.4 million, $233.9 million, $212.4
million and $104.1 million, respectively.
Exhibit 31.1
CERTIFICATION
I, J. Edward Coleman, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Unisys Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects
the financial condition, results of operations and cash flows of the registrant
as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision,
to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant's disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered
by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant's internal control
over financial reporting that occurred during the registrant's most recent
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting;
and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant's ability to record, process,
summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control over
financial reporting.
Date: October 30, 2009
/s/ J. Edward Coleman
-------------------------
Name: J. Edward Coleman
Title: Chairman of the Board and
Chief Executive Officer
Exhibit 31.2
CERTIFICATION
I, Janet Brutschea Haugen, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Unisys Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such
internal control over financial reporting to be designed under our supervision,
to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant's disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered
by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant's internal control
over financial reporting that occurred during the registrant's most recent
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting;
and
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant's ability to record, process,
summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
Date: October 30, 2009
/s/ Janet Brutschea Haugen
-------------------------
Name: Janet Brutschea Haugen
Title: Senior Vice President and
Chief Financial Officer
Exhibit 32.1
CERTIFICATION OF PERIODIC REPORT
I, J. Edward Coleman, Chairman of the Board and Chief Executive Officer of
Unisys Corporation (the "Company"), certify, pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that:
(1) the Quarterly Report on Form 10-Q of the Company for the quarterly period
ended September 30, 2009 (the "Report") fully complies with the requirements of
Section 13(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78m); and
(2) the information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company.
Dated: October 30, 2009
/s/ J. Edward Coleman
- ------------------------
J. Edward Coleman
Chairman of the Board and
Chief Executive Officer
A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to
the Securities and Exchange Commission or its staff upon request.
Exhibit 32.2
CERTIFICATION OF PERIODIC REPORT
I, Janet Brutschea Haugen, Senior Vice President and Chief Financial Officer of
Unisys Corporation (the "Company"), certify, pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that:
(1) the Quarterly Report on Form 10-Q of the Company for the quarterly period
ended September 30, 2009 (the "Report") fully complies with the requirements of
Section 13(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78m); and
(2) the information contained in the Report fairly presents, in all material
respects, the financial condition and results of operations of the Company.
Dated: October 30, 2009
/s/ Janet Brutschea Haugen
- ------------------------
Janet Brutschea Haugen
Senior Vice President and
Chief Financial Officer
A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to
the Securities and Exchange Commission or its staff upon request.