UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): August 16, 2012
UNISYS CORPORATION
(Exact name of registrant as specified in charter)
| Delaware | 1-8729 | 38-0387840 | ||
| (State or other jurisdiction of incorporation) |
(Commission file number) |
(I.R.S. employer identification no.) |
801 Lakeview Drive, Suite 100
Blue Bell, Pennsylvania 19422
(Address of principal executive offices)
Registrant’s telephone number, including area code: (215) 986-4011
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 8.01. Other Events
Pursuant to the terms and conditions of the Underwriting Agreement, dated as of August 16, 2012 (the “Underwriting Agreement”), between Unisys Corporation (the “Company”) and Citigroup Global Markets Inc., as the representative of the several underwriters named therein, the Company issued, on August 21, 2012, $210,000,000 aggregate principal amount of its 6.25% Senior Notes due 2017 (the “Notes”). The Notes were issued under the First Supplemental Indenture, dated as of August 21, 2012, between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), to the Indenture, dated as of June 1, 2012, between the Company and the Trustee.
A copy of each of the Underwriting Agreement, the Supplemental Indenture and the form of Note is filed as an exhibit hereto and is incorporated herein by reference.
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Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
| Exhibit |
Description | |
| 1.1 | Underwriting Agreement, dated as of August 16, 2012, between the Company and Citigroup Global Markets Inc., as representative of the several underwriters named in Schedule A therein | |
| 4.1 | First Supplemental Indenture, dated as of August 21, 2012, between the Company and the Trustee | |
| 4.2 | Form of 6.25% Senior Note due 2017 (included in Exhibit 4.1 hereto) | |
| 5.1 | Opinion of Simpson Thacher & Bartlett LLP | |
| 23.1 | Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1) | |
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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 hereunto duly authorized.
| UNISYS CORPORATION | ||||||
| Date: August 22, 2012 | By: | /s/ Janet B. Haugen | ||||
| Janet B. Haugen | ||||||
| Senior Vice President and Chief Financial Officer | ||||||
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EXHIBIT INDEX
| Exhibit |
Description | |
| 1.1 | Underwriting Agreement, dated August 16, 2012, between the Company and Citigroup Global Markets Inc., as representative of the several underwriters named in Schedule A therein | |
| 4.1 | First Supplemental Indenture, dated as of August 21, 2012, between the Company and the Trustee | |
| 4.2 | Form of 6.25% Senior Note due 2017 (included in Exhibit 4.1 hereto) | |
| 5.1 | Opinion of Simpson Thacher & Bartlett LLP | |
| 23.1 | Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1) | |
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Exhibit 1.1
EXECUTION VERSION
UNISYS CORPORATION
$210,000,000
6.25% Senior Notes due 2017
Underwriting Agreement
August 16, 2012
To Citigroup Global Markets Inc. as
the Representative named in
Schedule I hereto of the several
Underwriters named in Schedule
A hereto
Ladies and Gentlemen:
1. Introductory. Unisys Corporation, a Delaware corporation (the “Company”), proposes to sell to the several underwriters named in Schedule A hereto (the “Underwriters”), for whom Citigroup Global Markets Inc. (“you” or the “Representative”) is acting as representative, the principal amount of its securities identified in Schedule A hereto (the “Securities”), to be issued under an indenture (the “Base Indenture”) dated as of June 1, 2012, as amended by the First Supplemental Indenture (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”) to be dated as of August 21, 2012, between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”). To the extent there are no additional Underwriters listed on Schedule A other than you, the term Representative as used herein shall mean you, as Underwriters, and the terms Representative and Underwriters shall mean either the singular or plural as the context requires. Certain terms used herein are defined in Section 12 hereof.
2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 under the Securities Act of 1933, as amended (the “Act”) and an “automatic shelf registration statement” as defined in Rule 405 under the Act on Form S-3 (the “Initial Registration Statement”), including a form of base prospectus, for the registration of the Securities under the Act, and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations promulgated under the Act (the “Rules and Regulations”), has been prepared by the Company, filed not earlier than three years prior to the date hereof, and became effective upon filing with, the Securities and Exchange Commission (“Commission”). The Initial Registration Statement, as amended and supplemented, including all information, if any, deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A, 430B or 430C of the Rules and Regulations, is referred to herein as the “Registration Statement.” No stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering and sale of the Securities
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has been initiated or, to the Company’s knowledge, threatened by the Commission. The Company will file the Prospectus (as defined below) with the Commission pursuant to Rule 424(b) of the Rules and Regulations. The base prospectus contained in the Initial Registration Statement, at the time such registration statement became effective, as supplemented by the final prospectus supplement relating to the offering of Securities, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, is hereinafter referred to as the “Prospectus,” except that if any revised prospectus or prospectus supplement shall be provided to the Underwriters by the Company for use in connection with the offering of Securities which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus” shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Underwriters for such use. Any preliminary prospectus supplement (and the related base prospectus) relating to the offering of the Securities filed with the Commission pursuant to Rule 424 of the Rules and Regulations is hereafter referred to as the “Preliminary Prospectus.” Any “issuer free writing prospectus” (as defined in Rule 433 under the Act) relating to the Securities is hereafter referred to as an “Issuer Free Writing Prospectus;” and the Pricing Prospectus (as defined below), as supplemented by the Issuer Free Writing Prospectuses, if any, attached and listed in Schedule B to this Agreement, taken together, are hereafter referred to collectively as the “Pricing Disclosure Package.” Any reference herein to the Registration Statement, any Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package shall be deemed to refer to and include the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3, which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the effective date of such Registration Statement, the date of such Preliminary Prospectus or Prospectus or the Applicable Time, as applicable; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Prospectus, any Preliminary Prospectus or the Pricing Disclosure Package shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the effective date of such Registration Statement, the date of such Preliminary Prospectus or Prospectus or after the Applicable Time, as the case may be, that is incorporated therein by reference and (ii) any such document so filed. As used herein, the “Applicable Time” means the date and time that this Agreement is executed and delivered by the parties hereto and “Pricing Prospectus” means the most recent Preliminary Prospectus, as amended or supplemented immediately prior to the Applicable Time.
(b) The Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Rules and Regulations, and did not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; the Pricing Disclosure Package, as of the Applicable Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule B hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus, and each such Issuer Free Writing Prospectus, when taken together with the Pricing Disclosure Package as of the Applicable Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
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the light of the circumstances under which they were made, not misleading; provided, however, that in each case the foregoing representation and warranty does not apply to statements in or omissions from any of such documents based upon written information furnished to the Company by or on behalf of any Underwriter through the Representative, if any, specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6 hereof.
(c) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects, to the requirements of the Act, the Trust Indenture Act of 1939, as amended (“Trust Indenture Act”), and the Rules and Regulations; and the Registration Statement does not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the Applicable Time and the Closing Date (as defined in Section 3 of this Agreement), contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; the Indenture as of the effective date of the Registration Statement and on the Closing Date did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules and regulations thereunder; and the Prospectus will not, as of its date, the date of any amendment or supplement thereto and as of the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that in each case the foregoing representation and warranty does not apply to (i) statements in or omissions from any of such documents based upon written information furnished to the Company by or on behalf of any Underwriter through the Representative, if any, specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6 hereof, or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) of the Trustee under the Trust Indenture Act.
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Company has complied in all material respects with the requirements of Rule 433 under the Act with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to any such Issuer Free Writing Prospectus. The Company has not (i) distributed any “written communication” (as defined in Rule 405 under the Act) in connection with the Offering or
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(ii) filed, referred to, approved, used or authorized the use of any “free writing prospectus” as defined in Rule 405 under the Act with respect to the offering of Securities, except in each case for the Pricing Prospectus, the Prospectus, and any Issuer Free Writing Prospectus set forth on Schedule B hereto, any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the Act or any other “written communication” (as defined in Rule 405 under the Act) approved in writing in advance by the Representative.
(f) The Company was a “well-known seasoned issuer” (as defined in Rule 405 under the Act) and was not an “ineligible issuer” (as defined in Rule 405 under the Act), in each case, as of the applicable date specified under the Act with respect to the offering of the Securities.
(g) Subsequent to the respective dates as of which information is given in the Pricing Prospectus, except as disclosed in the Pricing Disclosure Package, (i) there has not been any material change in the capital stock or long-term debt of the Company or its subsidiaries, (ii) the Company and its subsidiaries taken as a whole have not sustained any material loss or material interference with their business or properties from fire, explosion, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and (iii) there has not been any material adverse change, or any development that would reasonably be expected to result in a material adverse change, whether or not arising from transactions in the ordinary course of business, in or affecting the business, financial condition, results of operations or stockholder’s equity of the Company and its subsidiaries, taken as a whole. Since the date of the latest balance sheet included in or incorporated by reference into the Registration Statement and the Pricing Prospectus, neither the Company nor any of its subsidiaries has incurred or undertaken any liabilities or obligations, whether direct or indirect, liquidated or contingent, matured or unmatured, or entered into any transactions, including any acquisition or disposition of any business or asset, which are material to the Company and its subsidiaries, taken as a whole, except for liabilities, obligations and transactions which are disclosed in the Pricing Disclosure Package.
(h) The Company has the authorized capitalization set forth in the Pricing Disclosure Package. All of the issued shares of capital stock or other ownership interests (in the case of the Company’s wholly-owned subsidiaries) or all of such capital stock or other ownership interests that the Company owns (in the case of less than wholly-owned subsidiaries) are owned directly or indirectly by the Company, in each case free and clear of any lien, charge, mortgage, pledge, security interest, claim, equity, trust or other encumbrance, preferential arrangement, defect or restriction of any kind whatsoever, other than (i) pursuant to the Company’s Credit Agreement, dated as of June 23, 2011 (the “Credit Agreement”), by and among the Company, the other persons party thereto that are designated as Credit Parties, General Electric Capital Corporation, as agent for the lenders, and the lenders party thereto, as amended, restated, modified, renewed, refunded, replaced or refinanced as of the date hereof, (ii) the security interests granted to Deutsche Bank Trust Company Americas as agent for the holders of the Company’s 12 3/4% Senior Secured Notes due 2014, (iii) as disclosed in the Pricing Disclosure Package or (iv) as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined below).
(i) The Company and each of its subsidiaries has been duly formed and validly exists as a corporation, company, partnership, limited liability company or other entity in good standing
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under the laws of its jurisdiction of organization, except as disclosed in the Pricing Disclosure Package and, in the case of the Company’s subsidiaries, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and each of its subsidiaries are duly qualified or registered to do business and is in good standing as a foreign corporation, partnership or limited liability company or other entity in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or registered or in good standing which (individually or in the aggregate) would not reasonably be expected to have a material adverse effect on (i) the business, financial condition, results of operations or stockholder’s equity of the Company and its subsidiaries, taken as a whole or (ii) the ability of the Company to consummate the transactions contemplated by this Agreement (any such effect described in (i) or (ii), a “Material Adverse Effect”).
(j) The Company has full corporate right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
(k) This Agreement has been duly authorized, executed and delivered by the Company.
(l) The Indenture meets the requirements for qualification under the Trust Indenture Act, has been duly authorized and, when executed by the proper officers of the Company and delivered (assuming due execution and delivery thereof by the Trustee), will constitute the valid and legally binding instrument of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity, good faith and fair dealing regardless of whether enforcement is sought in a proceeding of law or equity. The Securities have been duly and validly authorized and will be, when validly executed, authenticated and delivered in accordance with the terms of the Indenture, valid and legally binding obligations of the Company entitled to the benefits of the Indenture, enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity, good faith and fair dealing regardless of whether enforcement is sought in a proceeding of law or equity. The Securities conform to the description thereof in the Pricing Disclosure Package.
(m) The execution, delivery and performance of this Agreement, the Indenture and the Securities, and compliance by the Company with all of the provisions thereof, and the consummation of the transactions contemplated thereby, will not (i) require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except as such may be required under the securities or Blue Sky laws of the various states or jurisdictions outside the United States), (ii) be in contravention of any law, rule or regulation applicable to it or of any order applicable to it of any court or of any governmental body or instrumentality having jurisdiction over it or its properties, (iii) violate any of the provisions of the certificate of incorporation or bylaws of the Company or (iv) conflict with or constitute a breach of any of the terms or provisions of, or a default under, any agreement to which the Company is a party or by which it is bound, except in the case of each of clauses (i), (ii) and (iv), for consents, approvals, authorizations, other orders, contraventions, violations, conflicts, breaches or defaults which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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(n) The financial statements, including the notes thereto, and any supporting schedules included in or incorporated by reference into the Pricing Prospectus present fairly, in all material respects, the financial position as of the dates indicated and the cash flows and results of operations for the periods specified of the Company and its consolidated subsidiaries; except as may be otherwise stated in the Pricing Prospectus, said financial statements have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis throughout the periods involved; and any supporting schedules included in or incorporated by reference into the Pricing Prospectus present fairly, in all material respects, the information required to be stated therein. Other than as included in or incorporated by reference into the Pricing Prospectus, no other financial statements or supporting schedules are required to be included in or incorporated by reference into the Registration Statement, the Pricing Prospectus or the Prospectus by the Act or the Rules and Regulations. The other financial information included in or incorporated by reference into the Pricing Prospectus presents fairly in all material respects the information presented therein and has been derived from the books and records of the respective entities presented therein.
(o) The Company is not and, after giving effect to application of the net proceeds of the Offering as described in the Pricing Disclosure Package, will not be, required to register as an “investment company” under the Investment Company Act of 1940, as amended, and is not and will not be an entity “controlled” by an “investment company” within the meaning of such act.
(p) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC or for the purpose of financing any activity that is prohibited as to U.S. persons under U.S. sanctions administered by OFAC.
(q) To the Company’s knowledge, the activities of each of the Company, its subsidiaries, and each of its and their respective officers, directors or employees, in their capacities as such, have not violated, and the Company’s participation in the offering will not violate, (i) the Foreign Corrupt Practices Act of 1977 (the “FCPA”), (ii) anti-bribery laws, including any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997 (excluding the FCPA) and (iii) anti-money laundering laws, including applicable federal, state, international, foreign or other laws or regulations regarding anti-money laundering, including Title 18 U.S. Code section 1956 and 1957, the Patriot Act and the Bank Secrecy Act, except in the case of each of clauses (ii) and (iii), for any violation which, singularly or in the aggregate with all other such violations, would not reasonably be expected to have a Material Adverse Effect.
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(r) Except as described in the Pricing Disclosure Package, there is no legal or governmental proceeding, including routine litigation, pending or, to the Company’s knowledge, threatened, to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, singularly or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(s) Except as described in the Pricing Disclosure Package, there has been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic or other wastes or other hazardous substances by, due to or caused by the Company (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company is liable) upon any other property now or previously owned or leased by the Company or any of its subsidiaries, or upon any other property, in violation of any statute or any ordinance, rule (including rule of common law), regulation, order, judgment, decree or permit or which would, under any statute or any ordinance, rule (including rule of common law), regulation, order, judgment, decree or permit, give rise to any liability, except for any violation or liability which would not reasonably be expected to have, singularly or in the aggregate with all such violations and liabilities, a Material Adverse Effect; except as described in the Pricing Disclosure Package, there has been no disposal, discharge, emission or other release of any kind onto such property or into the environment surrounding such property of any toxic or other wastes or other hazardous substances with respect to which the Company or any of its subsidiaries has knowledge, except for any such disposal, discharge, emission or other release of any kind, which would not reasonably be expected to have, singularly or in the aggregate with all such discharges and other releases, a Material Adverse Effect. The Company has not agreed to assume, undertake or provide indemnification for any liability of any other person under any environmental law, including any obligation for cleanup or remedial action, except as would not reasonably be expected to have a Material Adverse Effect or as disclosed in the Pricing Disclosure Package.
(t) Except as described in the Pricing Disclosure Package, the Company and its subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, formulae, customer lists, and know-how and other intellectual property (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) (the “Intellectual Property”) necessary for the conduct of their respective businesses as being conducted and as described in the Pricing Disclosure Package, other than any Intellectual Property the absence of which would not reasonably be expected to have a Material Adverse Effect, and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such right of others, which claim would reasonably be expected to result in a Material Adverse Effect. Except as described in the Pricing Disclosure Package or as would not reasonably be expected to have a Material Adverse Effect, (i) to the Company’s knowledge, there is no infringement by third parties of any such Intellectual Property; (ii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s or its subsidiaries’ rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form the basis for any such claim; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others that the Company or its subsidiaries infringe or otherwise violate any patent, trademark, copyright, trade secret or other proprietary rights of others.
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(u) The Company and its subsidiaries have all necessary consents, authorizations, approvals, clearances, orders, certificates and permits of and from, and have made all required declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals to own, lease, license and use their respective properties and assets, as applicable, and to conduct their respective businesses in the manner described in the Pricing Disclosure Package; except such consents, authorizations, approvals, clearances, orders, certificates, permits, declarations and filings the failure of which to have would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) Except as described in the Pricing Disclosure Package, the Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) interactive data in Extensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package is prepared in accordance with the Commission’s rule and guidelines applicable thereto. The Company has established and maintains disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act); such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure; such disclosure controls and procedures are effective to perform the functions for which they were established; any significant material weaknesses in internal accounting controls have been identified for the Company’s Chief Executive Officer and its Chief Financial Officer; and since the date of the most recent evaluation of such internal accounting controls, there have been no significant changes in internal accounting controls or in other factors that could significantly affect internal accounting controls; except in each case as described in the Pricing Disclosure Package.
(w) Except as described in the Pricing Disclosure Package, the Company and its subsidiaries have accurately prepared and timely filed all federal, state and other tax returns that are required to be filed by them and have paid or made provision for the payment of all taxes, assessments, governmental or other similar charges, including without limitation, all sales and use taxes and all taxes which they are obligated to withhold from amounts owing to their respective employees, creditors and third parties, with respect to the periods covered by such tax returns (whether or not such amounts are shown as due on any tax return), except any amounts the Company is contesting in good faith or where the failure to so file or pay would not reasonably be expected to have a Material Adverse Effect. Except as described in the Pricing Disclosure Package, no deficiency assessment with respect to a proposed adjustment of the Company’s or any of the subsidiaries’ federal, state, or other taxes is pending or, to the
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Company’s knowledge, threatened, which would reasonably be expected to have a Material Adverse Effect. Except as described in the Pricing Disclosure Package, there is no material tax lien, whether imposed by any federal, state, or other taxing authority, outstanding against the assets, properties or business of the Company or any of its subsidiaries, which would reasonably be expected to have a Material Adverse Effect.
(x) Except as described in the Pricing Disclosure Package, the Company and its subsidiaries own or lease all such properties as are necessary to the conduct of their respective businesses as presently operated as described in the Pricing Disclosure Package, except for such failures to own or lease such properties which would not reasonably be expected to have a Material Adverse Effect; and the Company and its subsidiaries have good and marketable title to or valid leasehold interests in all of their respective properties, in each case free and clear of any and all liens, other than (i) pursuant to the Credit Agreement, as amended, restated, modified, renewed, refunded, replaced or refinanced as of the date hereof, (ii) the security interests granted to Deutsche Bank Trust Company Americas as agent for the holders of the Company’s 12 3/4% Senior Secured Notes due 2014, (iii) as described in the Pricing Disclosure Package or (iv) as would not reasonably be expect to have, individually or in the aggregate, a Material Adverse Effect.
(y) Except as described in the Pricing Disclosure Package, the Company and its subsidiaries maintain insurance in such amounts and covering such risks as the Company reasonably considers adequate for the conduct of their respective businesses and the value of their respective properties, all of which insurance is in full force and effect, except where the failure to maintain such insurance would not reasonably be expected to have a Material Adverse Effect. Except as described in the Pricing Disclosure Package, there are no material claims by the Company or any subsidiary under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause, except for such claims the denial of which would not reasonably be expected to have a Material Adverse Effect.
(z) Except in each case as described in the Pricing Disclosure Package or as would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect, no “prohibited transaction” (as defined in either Section 406 of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”)), or other event of the kind described in Section 4043(b) of ERISA (other than events with respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived) has occurred with respect to any “employee benefit plan” (as defined in Section 3(3) of ERISA) for which the Company or any of its subsidiaries would have any liability; no such employee benefit plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA has failed to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such plan; each such employee benefit plan for which the Company or any of its subsidiaries would have any liability is in compliance in all material respects with applicable law, including (without limitation) ERISA and the Code; and the Company has not incurred and does not reasonably expect to incur liability under Title IV of ERISA with respect to the termination of, or withdrawal from any “pension plan” (as defined in Section 3(2)(A) of ERISA).
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(aa) Neither the Company nor any of its affiliates (within the meaning of Rule 144 under the Act) has taken, directly or indirectly, any action which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in, the unlawful stabilization or manipulation of the price of any security to facilitate the sale or resale of the Securities.
(bb) KPMG LLP which has certified the financial statements and supporting schedules and information of the Company and its subsidiaries that are included in or incorporated by reference into in the Registration Statement, the Pricing Prospectus and the Prospectus and whose reports are included in or incorporated by reference into in the Registration Statement, the Pricing Prospectus and the Prospectus (such firm or firms, the “Independent Registered Public Accounting Firm”) is an independent registered public accounting firm with respect to the Company as required by the Act, the Exchange Act and the Rules and Regulations.
The Company is in compliance in all material respects with all presently applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder (the “Sarbanes-Oxley Act”).
The Company has paid or will pay the registration fee for the offering of the Securities pursuant to Rule 457 of the Act.
3. Purchase and Offering of Securities. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of 97.714% of the principal amount thereof, plus accrued interest from August 21, 2012 to the Closing Date, the principal amount of Securities set forth opposite such Underwriter’s name in Schedule A hereto.
Delivery of and payment for the Securities shall be made at 10:00 A.M., New York City time, on August 21, 2012, or at such time on such later date not more than three Business Days after the foregoing date as the Representative shall designate, which date and time may be postponed by agreement between the Representative and the Company or as provided in Section 7 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representative for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representative of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representative shall otherwise instruct.
4. Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to counsel for the Underwriters one signed copy of the registration statement relating to the Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will timely file the Prospectus with the Commission pursuant to Rule 424(b); the Company will advise you promptly of any such filing pursuant to Rule 424(b);
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the Company will advise the Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representative a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representative promptly of the filing and effectiveness of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its reasonable best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued; the Company will advise the Representative of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, or the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or, to its knowledge, the threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus.
(b) The Company will prepare a final term sheet, containing a description of the Securities, in a form approved by the Representative and attached hereto as Schedule C, and file such term sheet pursuant to Rule 433(d) under the Act within the time period prescribed by such Rule.
(c) The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities.
(d) The Company will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus.
(e) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (or in lieu thereof, the notice referred to in Rule 173(a) under the Act), any event occurs in the reasonable judgment of the Representative or the Company as a result of which the Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, if applicable, the Company will promptly notify the Representative and will prepare and file with the Commission, subject to Section 4(a) herein, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(f) The Company will not, without the prior consent of the Representative, (A) make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in
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Rule 405 under the Act, except for any Issuer Free Writing Prospectus set forth in Schedule B hereto, or (B) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Act with respect to the Offering or the Securities other than as set forth in Schedule B hereto. The Company consents to the use by any Underwriter of any free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering and that is included in any Preliminary Prospectus, (ii) information that describes the final terms of the Securities or their offering and that is included in the term sheet of the Company contemplated in Section (4)(b) of this Agreement or (iii) information permitted by Rule 134 under the Act. Notwithstanding any of the foregoing to the contrary, except pursuant to Section 4(f) hereof, no Underwriter shall include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Company where the use or reference to such free writing prospectus would require the filing of such “issuer information” with the Commission pursuant to Rule 433(d) due to the Underwriters’ inclusion of such “issuer information” in any “free writing prospectus”.
(g) If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Representative or the Company, conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus as then amended or supplemented, or would, in the judgment of the Representative or the Company, include, when taken together with the Pricing Disclosure Package, an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representative promptly and, if requested by the Representative, prepare and furnish without charge to each Underwriter an appropriate amendment or supplement (in form and substance reasonably satisfactory to the Representative) that will correct such statement, omission or conflict or effect such compliance.
(h) As soon as practicable after the date hereof, but in no event later than twelve months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), the Company will make generally available to its security holders an earnings statement which will satisfy the provisions of Section 11(a) of the Act.
(i) The Company will furnish to the Representative copies of the Registration Statement, including all exhibits, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, all amendments and supplements to such documents, and all documents incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Prospectus, in each case as soon as available and in such quantities as are reasonably requested.
(j) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representative reasonably designates and will continue such qualifications in effect so long as required for the distribution, except that in no event shall the Company be obligated in connection therewith to qualify as a foreign corporation, to execute a general consent to service of process or to subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
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(k) During the period in which the Securities remain outstanding, the Company will furnish to the Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representative (i) as soon as available, a copy of each report or definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representative may reasonably request.
(l) The Company will pay the costs incident to the authorization, issuance, sale and delivery of the Securities to be sold by the Company to the Underwriters and any taxes payable in that connection; the costs incident to the preparation, printing and filing under the Act of the Registration Statement and any amendments and exhibits thereto; the costs incident to the preparation, printing and filing of any document and any amendments and exhibits thereto required to be filed by the Company under the Exchange Act; the cost of distributing the Registration Statement to the Underwriters as originally filed and each amendment thereto, each post-effective amendment thereof (including exhibits), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements to or any documents incorporated by reference in any of the foregoing documents as provided in this Agreement; the costs of filing with the Financial Industry Regulatory Authority, Inc., if necessary; the fees and expenses of qualifying the Securities under the securities laws of the several jurisdictions as provided in this subsection and of preparing a Blue Sky memorandum and a memorandum concerning the legality of the Securities as an investment (including fees of counsel to the Underwriters in connection therewith); the costs of printing and issuance of certificates; the costs of preparation, printing and filing of any Indenture and any Trustees’ fees and expenses; and all other costs and expenses incident to the performance of the obligations of the Company under this Agreement; provided that, except as provided in this subsection and Section 8, the Underwriters shall pay their own costs and expenses, including the fees and expenses of their counsel, any transfer taxes on the Securities which they may sell, the expenses of advertising any offering of the Securities made by the Underwriters and the cost of printing any Agreement among Underwriters; provided, further, that after nine months from the date hereof, the Underwriters shall pay the costs of printing any additional Registration Statements or Prospectuses, or any amendments or supplements thereto, required for their own use.
(m) Without the prior consent of the Representative, the Company will not, for a period beginning at the Applicable Time and ending 40 days thereafter, offer, sell, contract to sell or otherwise dispose of any debt securities of the Company with maturities longer than one year, other than (i) the Securities to the Underwriters; (ii) borrowings in the ordinary course of business; and (iii) other borrowings in an aggregate principal amount not to exceed $100 million.
(n) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
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(o) Substantially concurrently with the closing of the offering of the Securities, the Company will issue a notice of redemption for its outstanding 12 3/4% Senior Secured Notes Due 2014, pursuant to the indenture governing such notes.
(p) The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Pricing Prospectus and the Prospectus.
5. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties by or on behalf of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) At the Applicable Time and on the Closing Date, the Representative shall have received a letter, dated the date of delivery thereof, of the Independent Registered Public Accounting Firm, addressed to the Underwriters and the Board of Directors of the Company, with respect to the financial statements and certain financial information contained or referred to in the Registration Statement, Pricing Disclosure Package and the Prospectus, as applicable. Such letter shall be in form and substance reasonably satisfactory to the Representative.
(b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement; the final term sheet contemplated by Section 4(b) of this Agreement, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission; and no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission.
(c) Subsequent to the Applicable Time, there shall not have occurred (i) any change, or a development that would reasonably be expected to result in a change, in or affecting the business, financial condition, results of operations or stockholder’s equity of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representative, makes it impractical or inadvisable to market the Securities or proceed with completion of the sale of and payment for the Securities; (ii) any downgrading, or placement on any watch list for possible downgrading, in the rating of the Company’s debt securities by any of Standard & Poor’s Corporation or Moody’s Investors Services, Inc.; (iii) any suspension of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal or New York authorities; or (v)(A) any outbreak or escalation of major hostilities or acts of terrorism in which the United States is involved, any declaration of war by the United States Congress or (B) any other substantial national or international calamity or emergency, or any substantial change in political, financial or economic conditions or currency exchange rates or exchange controls if the effect of any such event in clause (A) or (B) of this sentence, in the judgment of the Representative, makes impractical or inadvisable to market the Securities or proceed with completion of the sale of and payment for the Securities.
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(d) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date, from Simpson Thacher & Bartlett LLP, counsel for the Company; such opinion and negative assurance letter to be in form and substance reasonably satisfactory to the Underwriters, substantially to the effect set forth in Schedule D hereto.
(e) The Representative shall have received from Latham & Watkins LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have issued a notice of redemption for its outstanding 12 3/4% Senior Secured Notes Due 2014, pursuant to the indenture governing such notes.
(g) The Representative shall have received a certificate, dated the Closing Date, of the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive Officer, the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, are threatened by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries except as set forth in or contemplated by the Prospectus or as described in such certificate.
The Company will furnish the Representative with such conformed copies of such opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act and each selling agent of any Underwriter against any losses, claims, damages, or liabilities whatsoever, joint or several, to which such Underwriter may become subject, under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in (A) the Registration Statement or in any amendment thereof, or in any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or in any supplement thereto or amendment thereof, or in any Issuer Free Writing Prospectus, or in any “issuer information” (as defined in Rule 433(h)(2) under the Act) filed or required to be filed pursuant to Rule 433(d) under the Act, or (B) any other “written communication” (as defined in Rule 405 under the Act) provided to investors by, or with the approval of, the Company in connection with the Offering and any
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“road show” (as defined in Rule 433 under the Act ) for the Offering (collectively, “Marketing Materials”), or (ii) the omission or alleged omission to state (A) in the Registration Statement or any amendment thereof, a material fact required to be stated therein or necessary to make the statements therein not misleading, or (B) in any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or in any supplement thereto or amendment thereof, or in any Issuer Free Writing Prospectus, or in any “issuer information” (as defined in Rule 433(h)(2) under the Act ) filed or required to be filed pursuant to Rule 433(d) under the Act, or in any Marketing Materials, a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative, if any, specifically for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement any amendment thereof, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or in any amendment thereof or supplement thereto, any Issuer Free Writing Prospectus, or any “issuer information” (as defined in Rule 433(h)(2) under the Act) filed or required to be filed pursuant to Rule 433(d) under the Act or any Marketing Materials, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Underwriter through the Representative, specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred. The Company acknowledges that (i) the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting,” (ii) the list of Underwriters and their respective participation in the sale of the Securities, (iii) the sentences related to concessions and reallowances and (iv) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or Marketing Materials.
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(c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under subsection (a) or (b) above. In case any sub action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided that the Representative shall have the right to employ one counsel (in addition to one local counsel) to represent the Representative and those other Underwriters who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company under this Section if, in the reasonable judgment of outside counsel to the Underwriters, it is advisable for the Representative and those other Underwriters to be represented by separate counsel because separate defenses are available to such Underwriters, and in that event the reasonable fees and expenses of such separate counsel shall be paid by the Company. No indemnifying party shall, without the prior written consent of the indemnified parties, effect any settlement or compromise of, or consent to the entry of judgment with respect to, any pending or threatened claim, investigation, action or proceeding in respect of which the indemnified party is or reasonably could have been a party and indemnity or contribution may or could have been sought hereunder by the indemnified party, unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such claim, investigation, action or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or any failure to act, by or on behalf of the indemnified party.
(d) If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in the clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the
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Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposes) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the aggregate underwriting discounts and commissions received by it exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act; and the obligations of the Underwriters under this Section shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company, to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase securities hereunder and the aggregate amount of the Securities that such defaulting Underwriter of Underwriters agreed but failed to purchase does not exceed 10% of the total amount of the Securities, the Representative may make arrangements satisfactory to the Company for the purchase of such Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments under this Agreement, to purchase the Securities that such defaulting Underwriters agreed but fail to purchase. If any Underwriter or Underwriters so default and the aggregate amount of the Securities with respect to which such default or defaults occur exceeds 10% of the total amount of the Securities and arrangements satisfactory to the Representative and the Company for the purchase of such Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 8. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default. The respective commitments of the
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several Underwriters for the purposes of this Section shall be determined without regard to reduction in the respective Underwriters’ obligations to purchase the amounts of the Securities set forth opposite their names in Schedule A hereto.
8. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any termination of this Agreement or any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person and will survive delivery of and payment for the Securities. If the obligations of the Underwriters with respect to any offering of Securities are terminated pursuant to Section 7 or if for any reason the purchase of the Securities by the Underwriters hereunder is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 4(l) and the respective obligations of the Company and the Underwriters pursuant to Section 6 shall remain in effect. If for any reason the purchase of the Securities by the Underwriters is not consummated other than because of the termination of this Agreement pursuant to Section 7 or a failure to satisfy the conditions set forth in Section 5(c), the Company shall reimburse the Underwriters, severally, for all out f-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Securities. The provisions of Sections 11 and 13 shall also survive any termination or modification of this Agreement.
9. No Fiduciary Duty. The Company hereby acknowledges and agrees that, with respect to the offering of Securities pursuant to this Agreement, (i) the terms of this Agreement, and the offering of the Securities (including the price of the Securities) were negotiated at arm’s length between sophisticated parties represented by counsel; (ii) no fiduciary, advisory or agency relationship between the Company on the one hand, and the Underwriters on the other hand has been created as a result of any of the transactions contemplated by this Agreement or the process leading to such transactions, irrespective of whether any Underwriter has advised or is advising the Company on other matters, (iii) the Underwriter’s obligations to the Company in respect of the Offering are set forth in this Agreement in their entirety and (iv) the Company has obtained such legal, tax, accounting and other advice as they deem appropriate with respect to this Agreement and the transactions contemplated hereby and any other activities undertaken in connection therewith, and the Company is not relying on the Underwriters with respect to any such matters. The Company hereby agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect to the Company, or owes a fiduciary or similar duty to it, in connection with such transaction or the process leading thereto.
10. Notices. All communications hereunder will be in writing and, if sent to the Company, will be mailed, delivered, telexed or telecopied and confirmed to it at 801 Lakeview Drive, Suite 100, Blue Bell, Pennsylvania 19422, Attention: Treasurer, with a copy to the Chief Financial Officer. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representative in care of Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 10013, Fax: (212) 816-7912 Attention: General Counsel.
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11. Successors. This Agreement will inure to the benefit of and be binding upon the Company and such Underwriters as are identified in this Agreement and their respective successors and the officers and directors and controlling persons referred to in Section 6, and no other person will have any right or obligation hereunder. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign merely because of such purchase.
12. Certain Definitions. For purposes of this Agreement, (a) “business day” means any day on which the New York Stock Exchange is open for trading and (b) “subsidiary” and “significant subsidiary” have the meanings set forth in Rule 405 of the Rules and Regulations.
13. Applicable Law; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, including, without limitation, Section 5-1401 of the New York General Obligations Law. The Company and the Underwriters agree that any suit or proceeding arising in respect of this Agreement or our engagement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the Company and the Underwriters agree to submit to the jurisdiction of, and to venue in, such courts. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
14. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, | ||||
| UNISYS CORPORATION | ||||
| By: | /s/ Scott A. Battersby | |||
| Name: Scott A. Battersby | ||||
| Title: Vice President and Treasurer | ||||
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
| CITIGROUP GLOBAL MARKETS INC. | ||||
| BY: | /s/ David Leland | |||
| Name: David Leland | ||||
| Title: Managing Director | ||||
For itself and the other
several Underwriters, if any,
named in Schedule A to the
foregoing Agreement.
21
SCHEDULE A
| Name of Underwriter |
Aggregate Principal Amount of Notes To be Purchased |
|||
| Citigroup Global Markets Inc. |
$ | 189,330,000 | ||
| HSBC Securities (USA) Inc. |
10,335,000 | |||
| RBS Securities Inc. |
10,335,000 | |||
|
|
|
|||
| Total |
$ | 210,000,000 | ||
22
SCHEDULE B
| I. | Issuer Free Writing Prospectuses Included in the Pricing Disclosure Package |
See Schedule C
| II. | Issuer Free Writing Prospectuses Not Included in the Pricing Disclosure Package |
None.
23
SCHEDULE C
Issuer Free Writing Prospectus filed pursuant to Rule 433
Supplementing the Preliminary Prospectus Supplement dated August 16, 2012
Registration Statement 333-181874
August 16, 2012
$210,000,000
Unisys Corporation
6.25% Senior Notes due 2017
August 16, 2012
Pricing Supplement dated August 16, 2012 to the Preliminary Prospectus Supplement dated August 16, 2012 of Unisys Corporation. This Pricing Supplement relates only to the securities described below and is qualified in its entirety by reference to the Preliminary Prospectus Supplement. The information in this Pricing Supplement supplements the Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus Supplement only to the extent it is inconsistent with the information contained in the Preliminary Prospectus Supplement. Capitalized terms used in this Pricing Supplement but not defined have the meanings given them in the Preliminary Prospectus Supplement.
| Issuer: |
Unisys Corporation | |
| Title of Securities: |
6.25% Senior Notes due 2017 | |
| Distribution: |
SEC Registered | |
| Offering Size: |
$210,000,000 | |
| Gross Proceeds: |
$210,000,000 | |
| Underwriting Discount: |
2.286% | |
| Net Proceeds (Before Expenses): |
$205,199,400 | |
| Trade Date: |
August 16, 2012 | |
| Expected Settlement Date: |
August 21, 2012 (T+3) | |
| Maturity Date: |
August 15, 2017 | |
| Coupon: |
6.250% | |
| Price to Public: |
100.000% | |
| Yield to Maturity: |
6.250% | |
24
| Spread to Benchmark Treasury: |
+ 543 basis points | |
| Benchmark Treasury: |
0.500% UST due 7/31/2017 | |
| Interest Payment Dates: |
August 15 and February 15 | |
| First Interest Payment Date: |
February 15, 2013. Interest will accrue on the Notes from August 21, 2012. | |
| Record Dates: |
August 1 and February 1 | |
| Call Schedule: |
Non-Callable for Life | |
| Make-Whole Call: |
T + 50 basis points | |
| Change of Control: |
If rated investment grade, investor put at 101% unless the notes are rated investment grade pro forma for Change of Control transaction. If not rated investment grade, customary investor put at 101%. | |
| Denominations: |
Minimum denominations of $2,000 and higher integral multiples of $1,000 in excess thereof. | |
| Sole Book-Running Manager: |
Citigroup Global Markets Inc. | |
| Co-Managers: |
HSBC Securities (USA) Inc. | |
| RBS Securities Inc. | ||
| CUSIP/ISIN Numbers: |
CUSIP: 909214 BP2 | |
| ISIN: US909214BP20 | ||
| Use of Proceeds: |
The net proceeds of this offering will be used to redeem all of our outstanding 12 3/4% senior secured notes due 2014, including payment of accrued interest and premium. | |
| Other Changes to the Preliminary Prospectus Supplement: | ||
| Pro Forma Ratio of Earnings to Fixed Charges: |
As adjusted to give effect to the issuance of the notes in this offering and the application of the net proceeds from this offering as described in “Use of Proceeds” in the prospectus supplement, and assuming the offering had been completed on (i) January 1, 2012, our ratio of earnings to fixed charges would have been 4.56x for the six months ended June 30, 2012 and (ii) January 1, 2011, our ratio of earnings to fixed charges would have been 3.21x for the year ended December 31, 2011. | |
The issuer has filed a registration statement (including a base prospectus dated June 4, 2012) and a preliminary prospectus supplement dated August 16, 2012 with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary prospectus supplement and other documents the issuer has filed with
25
the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus, when available, if you request it by calling Citigroup Global Markets, Inc. at 1-877-858-5407.
26
Exhibit 4.1
UNISYS CORPORATION
$210,000,000
6.25% SENIOR NOTES DUE 2017
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 21, 2012
To
INDENTURE
Dated as of June 1, 2012
WELLS FARGO BANK, NATIONAL ASSOCIATION
Trustee
TABLE OF CONTENTS
| ARTICLE 1. | ||||||
| DEFINITIONS AND INCORPORATION | ||||||
| BY REFERENCE | ||||||
| Section 1.01 |
Definitions | 1 | ||||
| Section 1.02 |
Other Definitions | 5 | ||||
| Section 1.03 |
Incorporation by Reference of Trust Indenture Act | 6 | ||||
| Section 1.04 |
Rules of Construction | 6 | ||||
| Section 1.05 |
Relationship with Base Indenture | 6 | ||||
| ARTICLE 2. THE NOTES | ||||||
| Section 2.01 |
Form and Dating | 7 | ||||
| ARTICLE 3. | ||||||
| REDEMPTION AND PREPAYMENT | ||||||
| Section 3.01 |
Base Indenture | 7 | ||||
| Section 3.02 |
Notice to Trustee | 8 | ||||
| Section 3.03 |
Selection of Notes to Be Redeemed | 8 | ||||
| Section 3.04 |
Notice of Redemption | 8 | ||||
| Section 3.05 |
Effect of Notice of Redemption | 9 | ||||
| Section 3.06 |
Deposit of Redemption Price | 9 | ||||
| Section 3.07 |
Notes Redeemed in Part | 9 | ||||
| Section 3.08 |
Optional Redemption | 10 | ||||
| Section 3.09 |
Mandatory Redemption; Sinking Fund | 10 | ||||
| ARTICLE 4. | ||||||
| COVENANTS | ||||||
| Section 4.01 |
Base Indenture | 10 | ||||
| Section 4.02 |
Reports. | 10 | ||||
| Section 4.03 |
Stay, Extension and Usury Laws | 11 | ||||
| Section 4.04 |
Restrictions on Secured Debt | 11 | ||||
| Section 4.05 |
Change of Control | 12 | ||||
| Section 4.06 |
Corporate Existence | 13 | ||||
| Section 4.07 |
Subsidiary Guarantors | 13 | ||||
| Section 4.08 |
Sale and Lease-Back Transactions | 14 | ||||
| ARTICLE 5. | ||||||
| SUCCESSORS | ||||||
| Section 5.01 |
Base Indenture | 14 | ||||
| Section 5.02 |
Merger, Consolidation or Sale of Assets | 15 | ||||
| Section 5.03 |
Successor Corporation Substituted | 15 | ||||
| ARTICLE 6. | ||||||
| DEFAULTS AND REMEDIES | ||||||
| Section 6.01 |
Base Indenture | 16 | ||||
| Section 6.02 |
Events of Default | 16 | ||||
| Section 6.03 |
Acceleration | 17 | ||||
| Section 6.04 |
Waiver of Defaults | 17 | ||||
| Section 6.05 |
Limitation on Suits | 18 | ||||
| ARTICLE 7. | ||||||
| LEGAL DEFEASANCE AND COVENANT DEFEASANCE | ||||||
| Section 7.01 |
Base Indenture | 18 | ||||
i
| Section 7.02 |
Option to Effect Legal Defeasance or Covenant Defeasance | 19 | ||||
| Section 7.03 |
Legal Defeasance and Discharge | 19 | ||||
| Section 7.04 |
Covenant Defeasance | 19 | ||||
| Section 7.05 |
Conditions to Legal or Covenant Defeasance | 19 | ||||
| Section 7.06 |
Other Miscellaneous Provisions | 20 | ||||
| ARTICLE 8. | ||||||
| AMENDMENT, SUPPLEMENT AND WAIVER | ||||||
| Section 8.01 |
Base Indenture | 20 | ||||
| Section 8.02 |
Without Consent of Holders of Notes | 20 | ||||
| Section 8.03 |
With Consent of Holders of Notes | 21 | ||||
| Section 8.04 |
Payments for Consent | 22 | ||||
| Section 8.05 |
Revocation and Effect of Consents | 22 | ||||
| ARTICLE 9. | ||||||
| GUARANTEES | ||||||
| Section 9.01 |
Subsidiary Guarantee | 22 | ||||
| Section 9.02 |
Limitation on Subsidiary Guarantor Liability | 23 | ||||
| ARTICLE 10. | ||||||
| MISCELLANEOUS | ||||||
| Section 10.01 |
Communication by Holders of Notes with Other Holders of Notes | 23 | ||||
| Section 10.02 |
Rules by Trustee and Agent | 23 | ||||
| Section 10.03 |
No Personal Liability of Directors, Officers, Employees and Stockholders | 24 | ||||
| Section 10.04 |
Governing Law; Waiver of Jury Trial | 24 | ||||
| Section 10.05 |
No Adverse Interpretation of Other Agreements | 24 | ||||
| Section 10.06 |
Successors | 24 | ||||
| Section 10.07 |
Severability | 24 | ||||
| Section 10.08 |
Table of Contents, Headings, Etc | 24 | ||||
| Section 10.09 |
Facsimile and PDF Delivery of Signature Pages | 24 | ||||
| EXHIBITS | ||||||
| Exhibit A |
FORM OF NOTE | |||||
| Exhibit B |
FORM OF SUPPLEMENTAL INDENTURE | |||||
ii
FIRST SUPPLEMENTAL INDENTURE (the “First Supplemental Indenture”) dated as of August 21, 2012 by and between Unisys Corporation, a Delaware corporation (the “Company”), and Wells Fargo Bank, National Association, a national banking association, as trustee (the “Trustee”).
The Company has heretofore executed and delivered to the Trustee an indenture, dated as of June 1, 2012 (the “Base Indenture”), providing for the issuance from time to time of one or more series of the Company’s securities.
The Company desires and has requested the Trustee, pursuant to Section 8.1 of the Base Indenture, to join with it in the execution and delivery of this First Supplemental Indenture in order to supplement the Base Indenture to the extent set forth herein to provide for the issuance and the terms of the Notes (as defined below).
Section 8.1 of the Base Indenture provides that a supplemental indenture may be entered into by the Company and the Trustee without the consent of any Holders (as defined in the Base Indenture) to establish the form and terms of Securities of any series as permitted by Article 2 thereof. The provisions contained in this First Supplemental Indenture shall govern only the 6.25% Senior Notes due 2017 issued hereunder.
The execution and delivery of this First Supplemental Indenture has been duly authorized by a Board Resolution (as defined in the Base Indenture).
All conditions and requirements necessary to make this First Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto and the execution and delivery thereof have been in all respects duly authorized by the parties hereto.
The Company 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 6.25% Senior Notes due 2017 (the “Notes”):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
| Section 1.01 | Definitions. |
Capitalized terms used in this First Supplemental Indenture shall have the meanings set forth below. Capitalized terms used but not defined in this First Supplemental Indenture shall have the meanings ascribed to such terms in the Base Indenture.
“Attributable Debt” means, in the context of a Sale and Lease-Back Transaction, what the Company believes in good faith to be the present value, discounted at the interest rate implicit in the lease involved in such Sale and Lease-Back Transaction, of the lessee’s obligation under the lease for rental payments during the remaining term of such lease, including any extension. In the case of any lease that is terminable by the lessee upon the payment of a penalty, the amount of rental payments in the previous sentence will be determined using the lesser of (x) the amount of rental payments up to the first date the lease may be terminated (in which case the amount will also include the amount of the penalty) or (y) the amount of rental payments determined assuming no such termination. For purposes of this definition, any amounts the lessee must pay, whether or not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes, assessments, water rates or similar charges or any amounts the lessee must pay under the lease contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges are not included in the determination of the lessee’s obligations under the lease.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Base Indenture” has the meaning set forth in the preamble to this First Supplemental Indenture, as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof.
1
“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.
“Capital Lease” means a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with generally accepted accounting principles in effect in the United States as of the date of this First Supplemental Indenture.
“Capital Markets Debt” means any debt securities evidenced by notes, bonds or debentures (excluding, for the avoidance of doubt, any term loan, revolving loan or Qualified Receivables Financing) issued in the capital markets by the Company or any Subsidiary, whether issued in a public offering or private placement, including pursuant to Section 4(2) of the Securities Act or Rule 144A, Regulation S or Regulation D under the Securities Act.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
“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 and 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) other than the Company or any of its Subsidiaries;
(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.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Ratings Event.
“Company” means Unisys Corporation, and any and all successors thereto.
“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.
“Comparable Treasury Price” means, with respect to any date of redemption, (1) the average of two Reference Treasury Dealer Quotations for the date of redemption, after excluding the highest and lowest Reference Treasury Dealer Quotations or (2) if the Quotation Agent obtains fewer than four Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
“Consolidated Net Tangible Assets” means, with respect to any Person as of any date, the total assets of such Person and its Subsidiaries as of the most recent fiscal quarter end for which a consolidated balance sheet of such Person and its Subsidiaries is available as of that date minus (a) all current liabilities of such Person and its Subsidiaries (excluding any current liabilities for borrowed money having a maturity of less than 12 months but by its terms being renewable or extendible beyond 12 months from such date at the option of the borrower) and (b) all goodwill, tradenames, trademarks, patents, unamortized debt discount and expense and other like intangible assets (which, for the avoidance of doubt, shall exclude marketable software, net) of such Person and its Subsidiaries reflected on such balance sheet, as determined on a consolidated basis in accordance with GAAP.
2
“Credit Agreement” means the credit agreement, dated as of June 23, 2011, among the Company, the lenders party thereto, General Electric Capital Corporation, as lender, agent and swing line lender, Citibank, N.A., as syndication agent, Wells Fargo Capital Finance, LLC, as documentation agent and the other agents, arrangers and lenders party thereto, together with any related documents (including any security documents and guarantee agreements), as the same may be amended, modified, supplemented, extended, renewed, refinanced, replaced or substituted from time to time in any manner (whether upon termination or otherwise, including with a Qualified Receivables Financing, term loan or by means of sales of debt securities) in whole or in part whether by the same or any other institutional investor(s), agent(s) or lender(s) including any such amendment, modification, supplement, extension, renewal, refinancing, replacement or substitution that increases the principal amount or amount to be borrowed at any time outstanding not to exceed $200.0 million.
“Description of the Notes” means the Description of the Notes section of the Company’s prospectus supplement, dated August 16, 2012, relating to the offering of the Notes.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Domestic Subsidiary” means a Subsidiary that is not a Foreign Subsidiary.
“DTC” means The Depository Trust Company.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“First Supplemental Indenture” has the meaning set forth in the preamble hereof.
“Foreign Subsidiary” means a Subsidiary not organized or existing under the laws of the United States of America or any state or territory thereof or the District of Columbia and any direct or indirect Subsidiary of such Subsidiary.
“GAAP” means generally accepted accounting principles in the United States 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, including those contained in the Accounting Standards Codification or in such other statements by such other entity as have been approved by a significant segment of the accounting profession of the United States, which are in effect on the Issue Date.
“Global Notes” means individually and collectively, each of the Global Notes substantially in the form of Exhibit A attached hereto issued in accordance with Section 2.01(a) of this First Supplemental Indenture.
“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.
“Holder” means a Person in whose name a Note is registered.
“Indebtedness” means indebtedness for borrowed money (excluding, for the avoidance of doubt, trade payables).
“Indenture” means the Base Indenture, as supplemented by this First Supplemental Indenture, governing the Notes, in each case, as amended, supplemented or restated from time to time.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
3
“Issue Date” means the date on which the Notes are initially issued.
“Long-Term Indebtedness” means any Indebtedness maturing by its terms more than one year from its date of issuance (notwithstanding that any portion of such Indebtedness is included in current liabilities).
“Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.
“Notes” has the meaning assigned to it in the preamble to this First Supplemental Indenture.
“Qualified Receivables Financing” means any transaction or series of transactions entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries sells, conveys or otherwise transfers, or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable.
“Quotation Agent” means one of the Reference Treasury Dealers appointed by the Company as Quotation Agent.
“Rating Agency” means (1) S&P, (2) Moody’s or (3) if either of S&P or Moody’s shall not then exist, a nationally recognized securities rating agency or agencies, as the case may be, selected by the Company, which shall be substituted for S&P or Moody’s, as the case may be.
“Ratings Event” means with respect to the Notes at any time from or after the occurrence of a Change of Control and until the earlier to occur of (x) 60 days after the later of (i) the occurrence of a Change of Control or (ii) public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) and (y) both Rating Agencies publicly reaffirming an Investment Grade Rating on the Notes following such Change of Control, the Notes have a below Investment Grade Rating by either Rating Agency.
“Reference Treasury Dealer” means (1) Citigroup Global Markets Inc. and its successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), in which case the Company shall substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer selected by the Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by that Reference Treasury Dealer at 5:00 P.M., New York City time, on the third Business Day preceding that redemption date.
“S&P” means Standard & Poor’s Ratings Group or any successor to the rating agency business thereof.
“Sale and Lease-Back Transaction” means the leasing by the Company or any Subsidiary of any Property, whether owned at the date of this First Supplemental Indenture or acquired after the date of this First Supplemental Indenture (except for temporary leases for a term, including any renewal term, of up to three years and except for leases between the Company and any Subsidiary or between Subsidiaries), which Property has been or is to be sold or transferred by the Company or such Subsidiary to any party with the intention of taking back a lease of such Property.
“SEC” means the U.S. Securities and Exchange Commission.
4
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“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 date of this First Supplemental Indenture.
“Subsidiary” means, with respect to any Person, (1) any corporation, association or other business entity (other than a partnership, joint venture or limited liability company) of which more than 50% of the total voting power of shares of Voting Stock thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (2) any partnership, joint venture or limited liability company of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (y) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this First Supplemental Indenture shall refer to a Subsidiary or Subsidiaries of the Company.
“TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date on which this First Supplemental Indenture is qualified under the TIA.
“Treasury Rate” means, with respect to any date of redemption, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the remaining term of the Notes to be redeemed, yields for the two published maturities most closely corresponding to the applicable Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that date of redemption.
“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.
“Wholly Owned Domestic Subsidiary” means any Wholly Owned Subsidiary that is a Domestic Subsidiary.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person 100% of the outstanding Capital Stock of which (other than directors’ qualifying shares or shares required to be held by others in Foreign Subsidiaries) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.
| Section 1.02 | Other Definitions. |
| Term |
Defined in | |
| “Change of Control Offer” |
4.05 | |
| “Covenant Defeasance” |
7.04 | |
| “Event of Default” |
6.02 | |
| “Legal Defeasance” |
7.03 | |
| “Mortgage” |
4.04(a) | |
| “Non-Guarantor Subsidiary Indebtedness” |
4.04(b) | |
| “Payment Default” |
6.02(e) | |
| “PDF” |
10.9 | |
| “Property” |
4.04(a) | |
| “Subsidiary Guarantee” |
4.07 | |
| “Subsidiary Guarantor” |
4.07 | |
5
| Section 1.03 | Incorporation by Reference of Trust Indenture Act. |
Whenever this First Supplemental Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this First Supplemental Indenture.
The following TIA terms used in this First Supplemental Indenture have the following meanings:
“indenture securities” means the Notes;
“indenture security holder” means a Holder of a Note;
“indenture to be qualified” means this First Supplemental Indenture;
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes means the Company and any successor obligor upon the Notes.
All other terms used in this First Supplemental Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
| Section 1.04 | Rules of Construction. |
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined herein 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) provisions apply to successive events and transactions;
(6) references to sections of or rules under the Securities Act will be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(7) “will” shall be interpreted to express a command; and
(8) references to sections of the Indenture refer to sections of this First Supplemental Indenture.
| Section 1.05 | Relationship with Base Indenture. |
Unless otherwise stated herein, the terms and provisions contained in the Base Indenture will constitute, and are hereby expressly made, a part of this First Supplemental Indenture and the Company and the Trustee, by
6
their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this First Supplemental Indenture, the provisions of this First Supplemental Indenture will govern and be controlling.
The Trustee accepts the amendment of the Base Indenture effected by this First Supplemental Indenture, but only upon the terms and conditions set forth in this First Supplemental Indenture. The Trustee will not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, or for or with respect to (1) the validity or sufficiency of this First Supplemental Indenture or any of the terms or provisions hereof, (2) the proper authorization hereof by the Company, (3) the due execution hereof by the Company or (4) the consequences (direct or indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
ARTICLE 2.
THE NOTES
| Section 2.01 | Form and Dating. |
(a) The Notes shall initially be issued in registered global form without interest coupons. The Notes shall be substantially in the form of Exhibit A hereto (including the Global Note legend thereon). Notes issued in definitive form, if any, shall be substantially in the form of Exhibit A attached hereto (but without the Global Note legend thereon). The Notes may have such other notations, legends or endorsements required by law, stock exchange rule or usage. The Company shall furnish any such other notations, legends or endorsements to the Trustee in writing. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000.
(b) The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this First Supplemental Indenture and the Company and the Trustee, by their execution and delivery of this First Supplemental 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 the Base Indenture, the provisions of the Note shall govern and be controlling, and to the extent any provision of the Note conflicts with the express provisions of this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall govern and be controlling.
(c) Each Global Note shall represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding Notes from time to time as reflected in the records of the Trustee 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. The Trustee’s records shall be noted to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby, in accordance with instructions given by the Holder thereof as required by Section 2.8 of the Base Indenture.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
| Section 3.01 | Base Indenture |
Article 12 of the Base Indenture shall not apply to the Notes and hereafter shall be void and of no force and effect except solely with respect to any other series of Securities issued under the Base Indenture; and, insofar as relating to the Notes, any reference to Article 12 in the Base Indenture shall instead be deemed to refer to Article 3 of this First Supplemental Indenture.
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| Section 3.02 | Notice to Trustee. |
If the Company elects to redeem Notes pursuant to the redemption provisions of Section 3.08 hereof, it will furnish to the Trustee, at least 30 days but not more than 60 days before a redemption date, an Officers’ Certificate setting forth:
(i) the provision of this First Supplemental Indenture pursuant to which the redemption will occur;
(ii) the redemption date;
(iii) the principal amount of Notes to be redeemed; and
(iv) the redemption price.
| Section 3.03 | Selection of Notes to Be Redeemed. |
If less than all of the Notes are to be redeemed at any time and the Notes are in global form held by DTC or any successor Depositary, DTC or such Depositary will select the Notes to be redeemed in accordance with its procedures. If the Notes are not in global form held by DTC or any successor Depositary, the Trustee will select Notes either pro rata, by lot or by such other method as the Trustee shall deem appropriate in accordance with industry standards at the time of such redemption. In the event of partial redemption by lot, the particular Notes to be redeemed will be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption.
The Trustee will promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. 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, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, will be redeemed. Except as provided in the preceding sentence, provisions of this First Supplemental Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.
| Section 3.04 | 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 sent more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes pursuant to Article 7 hereof or pursuant to a satisfaction and discharge pursuant to the Base Indenture). The Company may provide in the notice that payment of the redemption price and the performance of the Company’s obligations with regard to the redemption may be performed by another Person.
The notice will identify the Notes to be redeemed, including the CUSIP numbers, and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued in the name of the Holder of such Notes upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
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(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 First Supplemental 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.
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 will have delivered to the Trustee, at least 45 days prior to the redemption date (or such shorter period as the Trustee in its sole discretion may allow), an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
| Section 3.05 | Effect of Notice of Redemption. |
Once a notice of redemption is mailed in accordance with Section 3.04 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price; provided, that any redemption of Notes pursuant to this First Supplemental Indenture may, at the Company’s discretion, be subject to one or more conditions precedent. If such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed.
| Section 3.06 | Deposit of Redemption Price. |
One Business Day prior to the redemption date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of, and accrued and unpaid interest (if any) on, all Notes to be redeemed 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 price of, and accrued and unpaid interest (if any) on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest will cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest will 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 will not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest will be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes.
| Section 3.07 | Notes Redeemed in Part. |
Upon surrender of a Note that is redeemed in part, the Company will issue and, upon receipt of an Issuer Order, the Trustee will authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered.
No Notes of $2,000 or less can be redeemed in part.
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| Section 3.08 | Optional Redemption. |
The Company may, in whole at any time or in part from time to time, redeem the Notes (including any additional Notes) at its option upon notice properly given under Section 3.04 of this First Supplemental Indenture, at a redemption price equal to the greater of (1)100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the redemption date) from the redemption date through the scheduled maturity date of the Notes to be redeemed, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points.
In the case of any redemption, the Company also will pay accrued and unpaid interest to, but not including, the applicable redemption date (subject to the right of Holders of record of such Notes on the relevant record date to receive interest due on any relevant interest payment date falling on or prior to the redemption date).
| Section 3.09 | Mandatory Redemption; Sinking Fund. |
The Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE 4.
COVENANTS
| Section 4.01 | Base Indenture |
Section 3.6 of the Base Indenture shall not apply to the Notes and hereafter shall be void and of no force and effect except solely with respect to any other series of Securities issued under the Base Indenture.
| Section 4.02 | Reports. |
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the SEC, the Company will file with the SEC (and provide the Trustee and Holders with copies thereof, without cost to each Holder, within 15 days after the Company files them with the SEC):
(1) within the time period specified in the SEC’s rules and regulations for non-accelerated filers, annual reports on Form 10-K (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form);
(2) within the time period specified in the SEC’s rules and regulations for non-accelerated filers, reports on Form 10-Q (or any successor or comparable form) containing the information required to be contained therein (or required in such successor or comparable form);
(3) promptly from time to time after the occurrence of an event required to be therein reported (and in any event within the time period specified in the SEC’s rules and regulations), such other reports on Form 8-K (or any successor or comparable form); and
(4) any other information, documents and other reports which the Company would be required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act.
provided, however, that the Company shall not be so obligated to file such reports with the SEC if the SEC does not permit such filing, in which event, the Company will make available such information to the Trustee and the Holders, in each case within 15 days after the time the Company would be required to file such information with the SEC if the Company were subject to Section 13 or 15(d) of the Exchange Act.
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(b) Notwithstanding Section 4.02(a), the Company will be deemed to have furnished such reports referred to above to the Trustee and Holders if the Company has filed such reports with the SEC via the EDGAR filing system (or any successor system) or, if the Company is not subject to reporting under Section 13 or 15(d) of the Exchange Act and is not permitted to file such reports with the SEC, if the Company posts such reports on its publicly available website, it being understood that the Trustee shall have no obligation whatsoever to determine whether such filings have been made.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
| Section 4.03 | Stay, Extension and Usury Laws. |
The Company 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 First Supplemental Indenture; and the Company 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 4.04 | Restrictions on Secured Debt. |
(a) Neither the Company nor any Subsidiary will create, incur, issue, assume or guarantee any Indebtedness secured by a mortgage, security interest, pledge or lien (collectively, a “Mortgage”) on or upon any of their property or assets (collectively, “Property”), whether owned at the date of this First Supplemental Indenture or acquired after the date of the First Supplemental Indenture, without ensuring that the Notes (together with, if the Company chooses, any other Indebtedness created, issued, assumed or guaranteed by the Company or any Subsidiary then existing or thereafter created) will be secured by such Mortgage equally and ratably with (or, at the Company’s option, prior to) such Indebtedness. This restriction will not apply to Indebtedness secured by any of the following:
(1) Mortgages on any Property acquired, leased, constructed or improved by the Company or any Subsidiary after the date of this First Supplemental Indenture to secure Indebtedness incurred for the purpose of financing or refinancing all or any part of the purchase price of such Property or of the cost of any construction or improvements on such Property, including Mortgages created as a result of an acquisition by way of Capital Lease, in each case, to the extent that the Indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or improvement of such Property, as the case may be;
(2) Mortgages on any Property of a Person existing at the time it is merged, combined or amalgamated with or into or consolidated with, or its assets or Capital Stock are acquired by, the Company or any of the Company’s Subsidiaries or it otherwise becomes a Subsidiary of the Company; provided, however, that in each case (a) the Indebtedness secured by such Mortgage was not incurred in contemplation of such merger, combination, amalgamation, consolidation, acquisition or transaction in which such Person becomes a Subsidiary of the Company and (b) such Mortgage extends only to the Property of such Person (and Subsidiaries of such Person);
(3) Mortgages in favor of the Company or any Subsidiary;
(4) Mortgages in favor of the United States or any state thereof, or political subdivision of the United States or any state thereof, or any department, agency or instrumentality of the United States or any state thereof or any such political subdivision, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure Indebtedness incurred or guaranteed to finance or refinance all or any part of the purchase price of the Property subject to any such Mortgage, or the cost of constructing or improving the Property subject to such Mortgage;
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(5) Mortgages to secure the Credit Agreement;
(6) Mortgages existing on the date of this First Supplemental Indenture (other than Mortgages to secure the Credit Agreement);
(7) Mortgages securing industrial revenue, pollution control or similar bonds issued or guaranteed by the United States or any state thereof, or political subdivision of the United States or any state thereof, or any department, agency or instrumentality of the United States or any state thereof or any such political subdivision;
(8) Mortgages securing obligations owed in respect of any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearinghouse transfers of funds; and
(9) extensions, renewals or replacements of any Mortgage referred to above (other than extensions, renewals or replacements of (i) Mortgages referred to in clause (5) of this Section 4.04(a) and (ii) any Mortgage that secures the 12 3/4% Senior Secured Notes due 2014); provided, however, that the principal amount of Indebtedness secured thereby may not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement (other than any increases attributable to (a) any premium required to be paid in connection with such refinancing pursuant to the terms of the Indebtedness so refinanced, (b) the amount of any premium reasonably determined by the Board of Directors as necessary to accomplish such refinancing by means of a tender offer or privately negotiated repurchase and (c) any fees or expenses incurred in connection with such refinancing), and such extension, renewal or replacement will be limited to all or a part of the Property plus improvements and construction on such Property which was subject to the Mortgage so extended, renewed or replaced.
(b) Notwithstanding the restrictions described under Section 4.04(a), the Company and any of its Subsidiaries may, without having to equally and ratably secure the Notes, issue, assume or guarantee Indebtedness secured by a Mortgage not excepted from the foregoing restriction, if at the time of such issuance, assumption or guarantee, after giving effect thereto and to the retirement of any Indebtedness which is concurrently being retired, the aggregate principal amount of all such Indebtedness secured by Mortgages which would otherwise be subject to such restriction (other than any such Indebtedness secured by Mortgages permitted as described in clauses (1) through (9) of Section 4.04(a) and any Indebtedness secured by Mortgages in relation to which the Notes have been and continue to be equally and ratably secured (or secured on a priority basis)) plus the aggregate amount (without duplication) of all Attributable Debt of the Company and any of its Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of such transactions which are permitted as described under clauses (1) and (2) of Section 4.08) taken together with the aggregate principal amount of all Indebtedness (other than intercompany Indebtedness) of Subsidiaries of the Company that do not guarantee the Notes at that time outstanding (“Non-Guarantor Subsidiary Indebtedness”), does not exceed 10% of Consolidated Net Tangible Assets of the Company.
| Section 4.05 | Change of Control. |
(a) Upon the occurrence of a Change of Control Repurchase Event with respect to the Notes, the Company will offer to repurchase the Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to the date of repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on any relevant interest payment date falling on or prior to the date of the repurchase), except to the extent the Company has previously or concurrently elected to redeem the Notes as described under Section 3.08 and all conditions precedent applicable to such election to redeem the Notes have been satisfied.
(b) Within 30 days following any Change of Control Repurchase Event, except to the extent that the Company has exercised its right to redeem the Notes by delivery of a notice of redemption as described under Section 3.08 and all conditions precedent applicable to such redemption notice have been satisfied, the Company shall mail a notice (a “Change of Control Offer”) to each Holder, with a copy to the Trustee, stating:
(1) that a Change of Control Repurchase Event has occurred and that the Company is obligated to offer to repurchase the Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to the date of repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on any relevant interest payment date falling on or prior to the date of the repurchase);
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(2) the repurchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and
(3) the instructions determined by the Company, consistent with this Section 4.05, that a Holder must follow in order to elect to have the Company repurchase such Holder’s Notes.
(c) A Change of Control Offer may be made in advance of a Change of Control Repurchase Event, and conditioned upon the occurrence of such Change of Control Repurchase Event, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
(d) The Company will not be required to make a Change of Control Offer with respect to the Notes upon the consummation of a Change of Control Repurchase Event if a third party makes the Change of Control Offer in the manner, at the time and otherwise in compliance with the requirements set forth in this First Supplemental Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer.
(e) Notes repurchased by the Company pursuant to a Change of Control Offer will have the status of Notes issued but not Outstanding or will be retired and canceled at the option of the Company. Notes purchased by a third party pursuant to Section 4.05(d) will have the status of Notes issued and Outstanding.
(f) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.05. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.05, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.05 by virtue thereof.
| Section 4.06 | Corporate Existence. |
Subject to Article 5 hereof, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence and (ii) the rights (charter and statutory), licenses and franchises of the Company and the Subsidiary Guarantors, if any; provided, however, that the Company will not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of the Subsidiary Guarantors, if the Board of Directors determines that 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 4.07 | Subsidiary Guarantors. |
(a) The Company will cause each Wholly Owned Domestic Subsidiary of the Company that is an issuer or co-issuer in respect of, or guarantees any, (i) Capital Markets Debt and/or (ii) syndicated loan financing (other than pursuant to the Credit Agreement) after the Issue Date, to execute and deliver to the Trustee a supplemental indenture substantially in the form set forth in Exhibit B hereto joining such Subsidiary to this First Supplemental Indenture, pursuant to which such Subsidiary will guarantee payment of the Notes in accordance with the terms of Article 9 hereof (each such guarantee of the Notes, a “Subsidiary Guarantee” and each such Subsidiary, a “Subsidiary Guarantor”) for so long as such debt giving rise to such guarantee obligation remains an obligation of such Subsidiary. The Company may cause other Subsidiaries to guarantee the Notes at its option.
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(b) The Subsidiary Guarantee of any such Subsidiary will be released upon:
(1) the sale or disposition (whether by merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or all or substantially all of its assets or its Capital Stock) to a person which is not (after giving effect to such transaction) a Subsidiary of the Company or the Company;
(2) discharge of this First Supplemental Indenture or Legal Defeasance or Covenant Defeasance; or
(3) any Subsidiary Guarantor ceasing to guarantee or be the issuer of all Capital Markets Debt or syndicated loan financing specified above;
and in each such case such Subsidiary shall be deemed automatically and unconditionally released and discharged from all the Subsidiary’s obligations under the Subsidiary Guarantee with respect to the Notes without any further action required on the part of the Subsidiary, the Company, the Trustee or any Holder of the Notes. In the event of the sale or disposition (whether by merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or all or substantially all of its assets or its Capital Stock) to a person which is not (after giving effect to such transaction) a Subsidiary or the Company, such person shall not be subject to the Subsidiary’s obligations under the Subsidiary Guarantee.
| Section 4.08 | Sale and Lease-Back Transactions. |
Neither the Company, nor any of its Subsidiaries, will, enter into any Sale and Lease-Back Transaction with respect to any of their Property unless:
(1) the Company or such Subsidiary is entitled under Section 4.04 to create, issue, assume or guarantee Indebtedness secured by a Mortgage on the Property to be leased without having to equally and ratably secure the Notes;
(2) the Company or such Subsidiary applies an amount (equaling at least the greater of the net proceeds of the sale of Property or the Attributable Debt in respect of such Sale and Lease-Back Transaction) within a period commencing one year prior to the consummation of such Sale and Lease-Back Transaction and ending one year after the consummation thereof, to make prepayments, repayments, redemptions or retirements on Long-Term Indebtedness or acquire, construct or improve long-term assets; or
(3) the Attributable Debt of the Company or such Subsidiary in respect of such Sale and Lease-Back Transaction and all other Sale and Lease-Back Transactions entered into after the Issue Date (other than any such Sale and Lease-Back Transaction as are permitted as described under clauses (1) and (2) of this Section 4.08), plus the aggregate principal amount (without duplication) of Indebtedness secured by Mortgages then outstanding (other than any such Indebtedness secured by Mortgages permitted as described in clauses (1) through (9) of Section 4.04(a) and any Indebtedness secured by Mortgages in relation to which the Notes have been and continue to be equally and ratably secured (or secured on a priority basis)) taken together with any Non-Guarantor Subsidiary Indebtedness, would not exceed 10% of Consolidated Net Tangible Assets of the Company.
ARTICLE 5.
SUCCESSORS
| Section 5.01 | Base Indenture |
Sections 9.1 and 9.2 of the Base Indenture shall not apply to the Notes and hereafter shall be void and of no force and effect except solely with respect to any other series of Securities issued under the Base Indenture; and, insofar as relating to the Notes, any reference to Section 9.1 or Section 9.2 in the Base Indenture shall instead be deemed to refer to Section 5.02 or 5.03, as applicable, of this First Supplemental Indenture.
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| Section 5.02 | Merger, Consolidation or Sale of Assets. |
(a) The Company may consolidate with or merge with or into any other corporation, or lease, sell or transfer all or substantially all of its property and assets if:
(1) the corporation formed by such consolidation or into which the Company is merged, or the party which acquires by lease, sale or transfer all or substantially all of the Company’s property and assets is a corporation organized and existing under the laws of the United States, any state in the United States or the District of Columbia;
(2) the corporation formed by such consolidation or into which the Company is merged (if the Company is not the surviving entity), or the party which acquires by lease, sale or transfer all or substantially all of the Company’s property and assets, agrees to pay the principal of, and any premium and interest on, the Notes and to perform and observe all covenants and conditions of the Indenture by executing and delivering to the Trustee a supplemental indenture; and
(3) immediately after giving effect to such transaction, no Default or Event of Default has happened and is continuing.
(b) Except as provided in Section 4.07(b), a Subsidiary Guarantor may not consolidate with or merge with or into another Person (whether or not such Subsidiary Guarantor is the surviving Person) or lease, sell or transfer all or substantially all of its properties and assets to another Person, other than the Company or another Subsidiary Guarantor, unless:
(1) immediately after giving effect to such transaction, no Default or Event of Default exists; and
(2) 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 Subsidiary Guarantor, assumes all the obligations of that Subsidiary Guarantor under this First Supplemental Indenture and its Subsidiary Guarantee pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee.
(c) This Section 5.02 will not prevent any consolidation, merger, lease, sale, transfer or other disposition of property solely between or among the Company and its Subsidiaries so long as the Company and the Subsidiary Guarantors, if any, comply with Section 5.02(a) and Section 5.02(b).
| Section 5.03 | Successor Corporation Substituted. |
(a) In the event that the Company consolidates with or merges with or into another corporation or sells substantially all of the Company’s assets to any other corporation in compliance with Section 5.02(a), the surviving entity (if other than the Company) will be substituted for the Company under the Indenture, and the Company will be discharged from all of its obligations under the Indenture.
(b) In the event that any Subsidiary Guarantor consolidates with or merges with or into a Subsidiary of the Company or sells substantially all of such Subsidiary Guarantor’s assets to a Subsidiary of the Company in compliance with Section 5.02(b), the surviving entity (if other than such Subsidiary Guarantor) will be substituted for such Subsidiary Guarantor under the Indenture, and such Subsidiary Guarantor will be discharged from all of its obligations under the Indenture.
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ARTICLE 6.
DEFAULTS AND REMEDIES
| Section 6.01 | Base Indenture |
Sections 5.1, 5.6 and 5.10 of the Base Indenture shall not apply to the Notes and hereafter shall be void and of no force and effect except solely with respect to any other series of Securities issued under the Base Indenture; and, insofar as relating to the Notes, any reference to Sections 5.1, 5.6 or 5.10 in the Base Indenture shall instead be deemed to refer to Section 6.02, 6.04 or 6.05, as applicable, of this First Supplemental Indenture.
| Section 6.02 | Events of Default. |
With respect to the Notes, an “Event of Default” is defined as being:
(a) a failure to pay interest upon the Notes that continues for a period of 30 days after payment is due;
(b) a failure to pay the principal or premium, if any, on the Notes when due upon maturity, redemption, acceleration or otherwise;
(c) a failure by the Company to comply with Section 4.05 and a failure by the Company or a Subsidiary Guarantor to comply with Section 5.02;
(d) a failure by the Company or any Subsidiary to comply with any other agreements or covenants contained in this First Supplemental Indenture applicable to the Notes for a period of 60 days after written notice to the Company of such failure from the Trustee (or to the Company and the Trustee from the Holders of at least 25% of the principal amount of the Notes then Outstanding);
(e) a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its Subsidiaries (or the payment of which is guaranteed by the Company or any of its Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the date of this First Supplemental Indenture, if that default:
(1) 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
(2) 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;
(f) 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;
(g) any Subsidiary Guarantee required by this First Supplemental Indenture, if any, of a Significant Subsidiary, 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 Subsidiary Guarantor that is a Significant Subsidiary required to give a Subsidiary Guarantee under this First Supplemental Indenture, or any Person acting on behalf of any Subsidiary Guarantor that is a Significant Subsidiary required to give a Subsidiary Guarantee under this First Supplemental Indenture, denies or disaffirms its obligations under its Subsidiary Guarantee, in each case, except as permitted by this First Supplemental Indenture;
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(h) the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors; or
(i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary; and
in each case, the order or decree remains unstayed and in effect for 60 consecutive days.
| Section 6.03 | Acceleration. |
If an Event of Default specified in clause (h) or (i) of Section 6.02 hereof occurs and is continuing, all Outstanding Notes will be due and payable without further action or notice. Holders of the Notes may not enforce this First Supplemental Indenture or the Notes except as provided in this First Supplemental Indenture. If any Event of Default (other than an Event of Default specified in clause (h) or (i) of Section 6.02 hereof) occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes may, by notice in writing to the Company (and to the Trustee if given by Holders), declare all the Notes to be due and payable immediately. Upon any such declaration, the Notes will become due and payable immediately.
| Section 6.04 | Waiver of Defaults. |
The Holders of a majority of the principal amount of the Notes then Outstanding may waive future compliance by the Company with Sections 4.04, 4.05, 4.07, 4.08 and 5.02 of this First Supplemental Indenture. The Holders of at least a majority in principal amount of the Notes then Outstanding may waive any past Default under this First Supplemental Indenture, except a failure by the Company to pay the principal of, or any premium or interest on, any Notes or a Default with respect to a provision that cannot be modified or amended without the consent of the Holders of all Notes then Outstanding. Any such waiver may be obtained in connection with a purchase of, or tender offer or exchange offer for, Notes. 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.
Upon any such waiver, such Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of the Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
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The Company may, in the circumstances permitted by the TIA, fix any day as the record date for the purpose of determining the Holders of Notes entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Holders of Notes under Section 5.9 of the Base Indenture or this Section 6.04. If not set by the Company prior to the first solicitation of a Holder of Notes made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required to be provided pursuant to Section 4.1 of the Base Indenture) prior to such first solicitation or vote, as the case may be.
| Section 6.05 | Limitation on Suits. |
No Holder of any note will have any right to institute any proceeding with respect to this First Supplemental Indenture or for any remedy under this First Supplemental Indenture unless:
(a) the Trustee has failed to institute such proceeding for 60 days after the Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the Notes;
(b) the Holders of at least 25% in principal amount of the Outstanding Notes have made a written request and offered security or indemnity reasonably satisfactory to the Trustee to institute such proceeding as Trustee;
(c) the Trustee shall have failed to comply with the request for 60 days after its receipt of such notice and offer of security and indemnity; and
(d) the Trustee has not received from the Holders of a majority in principal amount of the Outstanding Notes a direction inconsistent with such request;
it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee, that no one or more Holders of Notes shall have any right in any manner whatever by virtue or by availing of any provision of the Indenture to affect, disturb or prejudice the rights of any other such Holder of Notes, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under the Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Notes (it being further understood that (subject to Section 6.1 of the Base Indenture) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders). For the protection and enforcement of the provisions of this Section, each and every Holder of a Note and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding anything above in this Section 6.05, the Holder of any Note will have an absolute and unconditional right to receive payment of the principal of, and any premium or interest on, such Note on or after the date or dates they are to be paid as expressed in such Note and to institute suit for the enforcement of any such payment.
ARTICLE 7.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
| Section 7.01 | Base Indenture |
Section 10.3 of the Base Indenture shall not apply to the Notes and hereafter shall be void and of no force and effect except solely with respect to any other series of Securities issued under the Base Indenture; and, insofar as relating to the Notes, any reference to Section 10.3 in the Base Indenture shall instead be deemed to refer to Section 7.05 and 7.06 of this First Supplemental Indenture.
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| Section 7.02 | Option to Effect Legal Defeasance or Covenant Defeasance. |
The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, at any time, elect to have either Section 7.03 or 7.04 hereof be applied to all Outstanding Notes upon satisfaction of the conditions set forth in Section 7.05 hereof.
| Section 7.03 | Legal Defeasance and Discharge. |
Upon the Company’s exercise under Section 7.02 hereof of the option applicable to this Section 7.03, the Company will be deemed to have been discharged from its obligations with respect to all Outstanding Notes and to have each Subsidiary Guarantor’s obligation discharged with respect to its Subsidiary Guarantee on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company will be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which will thereafter be deemed to be “Outstanding” only for the purposes of Section 7.06 hereof and the other Sections of this First Supplemental Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under the Notes and this First Supplemental Indenture (and the Trustee, on demand of and at the expense of the Company, will execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 7.05 hereof, and as more fully set forth in such Section, payments in respect of the principal of and interest on such Notes when such payments are due (but not the purchase price referred to under Section 4.05 hereof), (b) the Company’s obligations with respect to the Notes under Article 2 and Section 3.2 of the Base Indenture and the Company’s rights under Section 3.08 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee, and the Company’s and the Subsidiary Guarantors’ obligations in connection therewith and (d) this Article 7. Subject to compliance with this Article 7, the Company may exercise its option under this Section 7.03 notwithstanding the prior exercise of its option under Section 7.04 hereof.
| Section 7.04 | Covenant Defeasance. |
Upon the Company’s exercise under Section 7.02 hereof of the option applicable to this Section 7.04, the Company will be released from its obligations under the covenants contained in Sections 4.04, 4.05, 4.07, 4.08 and 5.02 hereof with respect to the Outstanding Notes (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, the Company 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 6.02 hereof, but, except as specified above, the remainder of this First Supplemental Indenture and such Notes will be unaffected thereby. In addition, upon the Company’s exercise under Section 7.02 hereof of the option applicable to this Section 7.04 hereof, subject to the satisfaction of the conditions set forth in Section 7.05 hereof, Sections 6.02(c), (d) and (g) hereof will not constitute Events of Default.
| Section 7.05 | Conditions to Legal or Covenant Defeasance. |
The following will be the conditions to the application of either Section 7.03 or 7.04 hereof to the Outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) 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 an amount sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay each installment of principal of, and any premium and interest on, the Notes on the due dates for those payments in accordance with the terms of the Notes; and
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(b) the Company will have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related legal defeasance or covenant defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related defeasance had not occurred (and, in the case of legal defeasance only, such Opinion of Counsel must be based on a ruling of the Internal Revenue Service or other change in applicable Federal income tax law).
| Section 7.06 | Other Miscellaneous Provisions. |
Anything in this Article 7 to the contrary notwithstanding, 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 7.05 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 7.05(b) 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.
ARTICLE 8.
AMENDMENT, SUPPLEMENT AND WAIVER
| Section 8.01 | Base Indenture. |
Sections 8.1 and 8.2 of the Base Indenture shall not apply to the Notes and hereafter shall be void and of no force and effect except solely with respect to any other series of Securities issued under the Base Indenture; and, insofar as relating to the Notes, any reference to Sections 8.1 or 8.2 in the Base Indenture shall instead be deemed to refer to Section 8.02 or 8.03, as applicable, of this First Supplemental Indenture.
| Section 8.02 | Without Consent of Holders of Notes. |
Notwithstanding Section 8.03 of this First Supplemental Indenture, the Company and the Trustee may modify, amend or supplement this First Supplemental Indenture, the Notes or a Subsidiary Guarantee without the consent of any Holder or Holders of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of certificated Notes;
(c) to provide for the assumption of the Company’s or a Subsidiary Guarantor’s obligations, if any, to the Holders of the Notes in the case of a merger or consolidation or sale of all or substantially all of the Company’s or such Subsidiary Guarantor’s assets, as applicable;
(d) 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 this First Supplemental Indenture of any Holder of the Notes;
(e) to comply with the requirements of the SEC in order to effect or maintain the qualification of this First Supplemental Indenture under the TIA, to provide for the issuance of additional Notes in accordance with the Indenture or to allow any Subsidiary that will be a Subsidiary Guarantor to execute a supplemental indenture with respect to the Notes;
(f) to conform the text of this First Supplemental Indenture, the Notes or the Subsidiary Guarantees to any provision of the Description of the Notes to the extent that such provision in the Description of the Notes was intended to be a verbatim recitation of a provision of this First Supplemental Indenture or the Notes as evidenced in an Officers’ Certificate;
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(g) to evidence and provide for the acceptance of appointment by a successor trustee;
(h) to secure the Notes;
(i) to release any Mortgage granted in favor of the Holders of the Notes pursuant to Section 4.04 hereof; and
(j) to remove a Subsidiary Guarantor with respect to the Notes which, in accordance with the terms of this First Supplemental Indenture, ceases to be liable in respect of its Subsidiary Guarantee.
The Trustee is hereby authorized to join with the Company in the execution of any such amendment to this First Supplemental Indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to enter into any such amendment to this First Supplemental Indenture which affects the Trustee’s own rights, duties or immunities under the Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 8.03.
| Section 8.03 | With Consent of Holders of Notes. |
The Company and the Trustee may modify, amend or supplement this First Supplemental Indenture, including to release Subsidiary Guarantees, with the consent (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) of the Holders of a majority of the principal amount of the Notes then Outstanding. However, no such modification, amendment or supplement may, without the consent of the Holders of all then Outstanding Notes:
(a) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(b) 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;
(c) reduce the rate of or change the time for payment of interest on any Note;
(d) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest 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);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this First Supplemental Indenture relating to waivers of past Defaults or the rights of Holders of the Notes to receive payments of principal of interest or premium, if any, on the Notes;
(g) waive a redemption payment with respect to any Note;
(h) release any Subsidiary Guarantor, if any, from any of its obligations under its Subsidiary Guarantee or this First Supplemental Indenture, except in accordance with the terms of this First Supplemental Indenture; or
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(i) make any change in this Section 8.03.
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 Article 6 of the Base Indenture, the Trustee will join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this First Supplemental 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 First Supplemental Indenture or otherwise.
| Section 8.04 | Payments for Consent. |
The Company will not, and the Company will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration, including any related tender offer consideration, whether by way of interest, fee or otherwise, to any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this First Supplemental Indenture or the notes unless the same consideration is offered to be paid or agreed to be paid to all Holders of the Notes affected thereby that consent, waive or agree to amend such term or provision within the time period set forth in the solicitation documents relating to the consent, waiver or amendment.
| Section 8.05 | 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 waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
ARTICLE 9.
GUARANTEES
| Section 9.01 | Subsidiary Guarantee. |
Subject to this Article 9, any Person that is required to become a Subsidiary Guarantor pursuant to Section 4.07 hereof will, jointly and severally, unconditionally guarantee 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 First Supplemental Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of 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 and interest on the Notes, if any, 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 (b) 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 Subsidiary Guarantors will be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Subsidiary Guarantors hereby agree that their obligations hereunder will be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this First Supplemental 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 Subsidiary Guarantor.
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Each Subsidiary 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 Subsidiary Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and this First Supplemental Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
Each Subsidiary 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 Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) 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 Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors will have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
| Section 9.02 | Limitation on Subsidiary Guarantor Liability. |
By its acceptance of Notes, each Holder, hereby confirms, and any Person that is required to become a Subsidiary Guarantor pursuant to Section 4.07 hereof will confirm, that it is the intention of all such parties that the Subsidiary Guarantee of such Subsidiary 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 Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee and the Holders hereby irrevocably agree, and any Person that is required to become a Subsidiary Guarantor pursuant to Section 4.07 hereof will agree, that the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee and this Article 9 will be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary 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 Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 9, result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance.
ARTICLE 10.
MISCELLANEOUS
| Section 10.01 | Communication by Holders of Notes with Other Holders of Notes. |
Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this First Supplemental Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else will have the protection of TIA Section 312(c).
| Section 10.02 | Rules by Trustee and Agent. |
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.
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| Section 10.03 | No Personal Liability of Directors, Officers, Employees and Stockholders. |
No director, officer, employee or stockholder of the Company or any Subsidiary will have any liability for any of the Company’s obligations under the Notes or this First Supplemental Indenture 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 10.04 | Governing Law; Waiver of Jury Trial. |
THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES, IF ANY, ARE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
| Section 10.05 | No Adverse Interpretation of Other Agreements. |
This First Supplemental 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 First Supplemental Indenture.
| Section 10.06 | Successors. |
All agreements of the Company in this First Supplemental Indenture and the Notes will bind its successors. All agreements of the Trustee in this First Supplemental Indenture will bind its successors.
| Section 10.07 | Severability. |
In case any provision in this First Supplemental Indenture or in the Notes will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
| Section 10.08 | Table of Contents, Headings, Etc. |
The Table of Contents and Headings of the Articles and Sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this First Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.
| Section 10.09 | Facsimile and PDF Delivery of Signature Pages. |
The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or portable document format (“PDF”) transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
[Signatures on following page]
24
SIGNATURES
Dated as of August 21, 2012
| UNISYS CORPORATION | ||
| By: | /s/ Scott A. Battersby | |
| Name: Scott A. Battersby | ||
| Title: Vice President and Treasurer | ||
Signature Page to Indenture
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Raymond Delli Colli | |
| Name: Raymond Delli Colli | ||
| Title: Vice President | ||
Signature Page to Indenture
EXHIBIT A
[FACE OF NOTE]
[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 ARTICLE 2 OF THE BASE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO ARTICLE 2 OF THE BASE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO ARTICLE 2 OF THE BASE 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.]
6.25% SENIOR NOTES DUE 2017
No.
| ISIN No.: | $ | |
| CUSIP No.: |
UNISYS CORPORATION
promises to pay or registered assigns, the principal sum of DOLLARS on August 15, 2017.
Interest Payment Dates: February 15th and August 15th
Record Dates: February 1st and August 1st
Dated: August 21, 2012
A-1
| UNISYS CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
Date of Authentication:
This is one of the Global Notes
referred to in the within-
mentioned First Supplemental Indenture:
| WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
| as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
A-2
[BACK OF NOTE]
6.25% Senior Notes due 2017
Capitalized terms used herein have the meanings assigned to them in the Base Indenture or the First Supplemental Indenture, as applicable, referred to below unless otherwise indicated.
1. INTEREST. Unisys Corporation, a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 6.25% per annum from the date hereof until maturity. The Company will pay interest semi-annually on February 15 and August 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”), and no interest on such payment will accrue for the period from and after such 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 that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest will accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date will be February 15, 2013. The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year 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 February 1 or August 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. Principal, premium, if any, and interest on the Notes will be payable at the office or agency of the Paying Agent 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 of the Notes at their respective addresses set forth in the register of Holders of Notes; provided that all payments of principal, premium and interest with respect to Notes the Holders of which have given wire transfer instructions to the Trustee may be made by wire transfer of immediately available funds to the accounts specified by the Holders thereof. 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, Wells Fargo Bank, National Association, the Trustee under the First Supplemental Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. This Note is one of a duly authenticated series of securities of the Company issued and to be issued in one or more series under an indenture (the “Base Indenture”), dated as of June 1, 2012, between the Company and the Trustee, as amended by the First Supplemental Indenture (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), dated as of August 21, 2012, among the Company and the Trustee. The terms of the Notes include those stated in the First Supplemental Indenture and those made part of the First Supplemental Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the First Supplemental Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Base Indenture, the provisions of this Note will govern and be controlling, and to the extent any provision of this Note conflicts with the express provisions of the First Supplemental Indenture, the provisions of the First Supplemental Indenture will govern and be controlling.
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5. OPTIONAL REDEMPTION.
The Company may, in whole at any time or in part from time to time, redeem the Notes (including any additional Notes) at the Company’s option upon not less than 30 nor more than 60 days’ prior notice, at a redemption price equal to the greater of (1)100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the redemption date) from the redemption date through the scheduled maturity date of the Notes to be redeemed, discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points.
In the case of any redemption, the Company also will pay accrued and unpaid interest to, but not including, the applicable redemption date (subject to the right of Holders of record of such Notes on the relevant record date to receive interest due on any relevant interest payment date falling on or prior to the redemption date).
6. MANDATORY REDEMPTION. The Company is not required to make mandatory redemption payments or sinking fund payments with respect to the Notes.
7. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control Repurchase Event with respect to the Notes, the Company will offer to repurchase the Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to the date of repurchase (subject to the right of Holders of record on the relevant record date to receive interest due on any relevant interest payment date falling on or prior to the date of the repurchase), except to the extent the Company has previously or concurrently elected to redeem the Notes as described under Section 3.08 of the First Supplemental Indenture and all conditions precedent applicable to such election to redeem the Notes have been satisfied.
(b) Within 30 days following any Change of Control Repurchase Event, except to the extent that the Company has exercised its right to redeem the Notes by delivery of a notice of redemption as described under Section 3.08 of the First Supplemental Indenture and all conditions precedent applicable to such redemption notice have been satisfied, the Company shall mail a notice (a “Change of Control Offer”) to each Holder of Notes with a copy to the Trustee.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption.
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. Notes may be transferred or exchanged as provided in the First Supplemental 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 First Supplemental Indenture. The Company need not exchange or transfer 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 the mailing of a notice of redemption of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Base Indenture may be amended as provided therein. Subject to certain exceptions, the First Supplemental Indenture or the Notes may be
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modified, amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then Outstanding, including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes, voting as a single class, and any existing default or compliance with any provision of the First Supplemental Indenture or the Notes 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, or tender offer or exchange offer for, Notes, voting as a single class. Without the consent of any Holder of a Note, the First Supplemental Indenture or the Notes may be amended or supplemented (i) to cure any ambiguity, defect or inconsistency; (ii) to provide for uncertificated Notes in addition to or in place of certificated Notes; (iii) to provide for the assumption of the Company’s or a Subsidiary Guarantor’s obligations, if any, to Holders of the Notes in case of a merger or consolidation or sale of all or substantially all of the Company’s or such Subsidiary Guarantor’s assets, as applicable; (iv) 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 First Supplemental Indenture of any such Holder; (v) to comply with the requirements of the SEC in order to effect or maintain the qualification of the First Supplemental Indenture under the Trust Indenture Act, to provide for the issuance of additional Notes in accordance with the Indenture or to allow any Subsidiary that will be a Subsidiary Guarantor to execute a supplemental indenture with respect to the Notes; (vi) to conform the text of the First Supplemental Indenture or the Notes to any provision of the Description of Notes to the extent that such provision in the Description of Notes was intended to be a verbatim recitation of a provision of the First Supplemental Indenture or the Notes as evidenced in an Officers’ Certificate; (vii) to evidence and provide for the acceptance of appointment by a successor trustee; (viii) to secure the Notes; (ix) to release any Mortgage granted in favor of the Holders of the Notes pursuant to Section 4.04 of the First Supplemental Indenture and (x) to remove a Subsidiary Guarantor with respect to the Notes which, in accordance with the terms of the First Supplemental Indenture, ceases to be liable in respect of its Subsidiary Guarantee.
12. DEFAULTS AND REMEDIES. Each of the following is an “EVENT OF DEFAULT”: (i) a failure to pay interest upon the Notes that continues for a period of 30 days after payment is due; (ii) a failure to pay the principal or premium, if any, on the Notes when due upon maturity, redemption, acceleration or otherwise; (iii) a failure by the Company to comply with Section 4.05 of the First Supplemental Indenture and a failure by the Company or a Subsidiary Guarantor to comply with Section 5.02 of the First Supplemental Indenture; (iv) a failure by the Company or any Subsidiary to comply with any other agreements or covenants contained in the First Supplemental Indenture applicable to the Notes for a period of 60 days after written notice to the Company of such failure from the Trustee (or to the Company and the Trustee from the Holders of at least 25% of the principal amount of the Notes then Outstanding); (v) a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of the Company’s Subsidiaries (or the payment of which is guaranteed by the Company or any of the Company’s Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the date of the First Supplemental 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 period 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 is a Payment Default or the maturity of which has been so accelerated, aggregates $50.0 million or more; (vi) failure by the Company or any of its Significant Subsidiaries fails to pay final judgments 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; (vii) any Subsidiary Guarantee required by the First Supplemental Indenture, if any, of a Significant Subsidiary, 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 Subsidiary Guarantor that is a Significant Subsidiary required to give a Subsidiary Guarantee under the First Supplemental Indenture, or any Person acting on behalf of any Subsidiary Guarantor that is a Significant Subsidiary required to give a Subsidiary Guarantee under the First Supplemental Indenture, denies or disaffirms its obligations under its Subsidiary Guarantee, in each case, except as permitted by the First Supplemental Indenture; or (viii) certain events of bankruptcy or insolvency occur with respect to the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary.
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If an Event of Default arising from certain events of bankruptcy or insolvency occurs and is continuing, all Outstanding Notes will become due and payable 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 principal amount of the then Outstanding Notes may declare all the Notes to be due and payable. Holders may not enforce the First Supplemental Indenture or the Notes except as provided in the First Supplemental Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then Outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal or interest. The Holders of a majority in aggregate principal amount of the Notes then Outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the First Supplemental Indenture except a continuing Default or Event of Default in the payment of interest on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the First Supplemental 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 or stockholder of the Company or any Subsidiary will have any liability for any of the Company’s obligations under the Notes or the First Supplemental Indenture 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. The Company will furnish to any Holder upon written request and without charge a copy of the Base Indenture, the First Supplemental Indenture and the Subsidiary Guarantees. Requests may be made to:
Unisys Corporation
801 Lakeview Drive, Suite 100
Blue Bell, PA 19422
Attention: Investor Relations
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
| (I) or (we) assign and transfer this Note to: |
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| (Insert assignee’s legal name) |
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| (Insert assignee’s soc. sec. or tax I.D. no.) |
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| (Print or type assignee’s name, address and zip code) |
| and irrevocably appoint |
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to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
| Your Signature: |
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| (sign exactly as your name appears on the face of this senior note) | ||
| Tax Identification No: |
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| Signature Guarantee: |
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to Section 4.05 of the First Supplemental Indenture, sign and complete this form.
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.05 of the First Supplemental Indenture, state the amount you elect to have purchased (if no amount is stated, this election will apply to the entire amount of the Note): $
Date:
| Your Signature: |
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| (sign exactly as your name appears on the face of this senior note) | ||
| Tax Identification No: |
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| Signature Guarantee: |
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
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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 exchanges of a part of another Global 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 signatory of Trustee or Custodian | ||||
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EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT SUBSIDIARY GUARANTORS]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of , 20 , among (the “Guaranteeing Subsidiary”), a subsidiary of Unisys Corporation (or its permitted successor), a Delaware corporation (the “Company”), the Company and Wells Fargo Bank, National Association, a national banking association, as trustee under the First Supplemental Indenture referred to herein (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, dated as of June 1, 2012 (the “Base Indenture”), between the Company and the Trustee, as supplemented by the First Supplemental Indenture (the “First Supplemental Indenture”), dated as of August 21, 2012 (the Indenture, as supplemented by the First Supplemental Indenture and any other supplemental indenture applicable to the Notes, the “Indenture”), providing for the issuance of 6.25% Senior Notes due 2017 (the “Notes”);
WHEREAS, the First Supplemental 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 First Supplemental Indenture on the terms and conditions set forth herein (the “Subsidiary Guarantee”); and
WHEREAS, pursuant to Section 8.02 of the First Supplemental 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 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 Subsidiary Guarantee on the terms and subject to the conditions set forth in the Subsidiary Guarantee and in the First Supplemental Indenture including but not limited to Article 9 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Subsidiary Guarantees, the First Supplemental Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the 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. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
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. This Supplemental Indenture may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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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: , 20
| [GUARANTEEING SUBSIDIARY] | ||
| By: |
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| Name: | ||
| Title: | ||
| [COMPANY] | ||
| By: |
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| Name: | ||
| Title: | ||
| [EXISTING GUARANTORS] | ||
| By: |
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| Name: | ||
| Title: | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||
| By: |
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| Authorized Signatory | ||
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Exhibit 5.1
August 22, 2012
Unisys Corporation
801 Lakeview Drive
Suite 100
Blue Bell, Pennsylvania 19422
Ladies and Gentlemen:
We have acted as counsel to Unisys Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 (File No. 333-181874) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the issuance thereunder by the Company of $210,000,000 aggregate principal amount of 6.25% Senior Notes due 2017 (the “Notes”). The Notes will be issued pursuant to the Indenture, dated as of June 1, 2012 (the “Base Indenture”), between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture dated as of August 21, 2012 (together with the Base Indenture, the “Indenture”).
We have examined the Registration Statement as it became effective under the Act; the prospectus dated June 4, 2012 (the “Base Prospectus”), as supplemented by the prospectus supplement dated August 16, 2012 (the “Final Prospectus Supplement”), filed by the Company pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; the Indenture; duplicates of the global note representing the Notes; and the Underwriting Agreement dated August 21, 2012 (the “Underwriting Agreement”), among the Company and the underwriters named therein.
| -2- | August 22, 2012 |
We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinion hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company.
In rendering the opinion set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We also have assumed that the Indenture will be the valid and legally binding obligation of the Trustee.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that, assuming due authentication of the Notes by the Trustee, and upon payment and delivery in accordance with the Underwriting Agreement, the Notes will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms.
Our opinion set forth above is subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), and (iii) an implied covenant of good faith and fair dealing.
| -3- | August 22, 2012 |
We do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States and the Delaware General Corporation Law.
We hereby consent to the filing of this opinion letter as an Exhibit to the Current Report on Form 8-K dated the date hereof, which we understand will be incorporated by reference into the Registration Statement and to the use of our name under the captions “Validity of Securities” in the Final Prospectus Supplement and “Legal Matters” in the Base Prospectus, which are part of the Registration Statement.
| Very truly yours, |
| /s/ SIMPSON THACHER & BARTLETT LLP |
| SIMPSON THACHER & BARTLETT LLP |