SUPPLEMENTAL INDENTURE NO. 1
Exhibit 4.2
SUPPLEMENTAL XXXXXXXXX XX. 0
Xxxxxxxxxxxx Xxxxxxxxx No. 1 (“Supplemental Indenture No. 1”), dated as of December 17, 2021, among Fair Xxxxx Corporation, a Delaware corporation (the “Company”) and U.S. Bank National Association, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee a Senior Notes Indenture (the “Initial Indenture”), dated as of December 6, 2019, providing for the issuance of an unlimited aggregate principal amount of 4.000% Senior Notes due 2028;
WHEREAS, the Company has previously issued $350,000,000 aggregate principal amount of 4.000% Senior Notes due 2028 (the “Existing Notes”) on December 6, 2019;
WHEREAS, the Company wishes to issue $550,000,000 aggregate principal amount of Additional Notes;
WHEREAS, in accordance with Section 2.01 of the Initial Indenture, the Company may issue Additional Notes and shall enter into a supplemental indenture to the Initial Indenture to provide for the issuance of such Additional Notes;
WHEREAS, the Company and the Guarantors wish to execute and deliver this Supplemental Indenture No. 1 to provide for the issuance of $550,000,000 aggregate principal amount of its 4.000% Senior Notes due 2028 (the “New Notes”) as Additional Notes under the Initial Indenture;
WHEREAS, in connection with the issuance of the New Notes and pursuant to Section 2.01 of the Initial Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture No. 1;
WHEREAS, all things necessary have been done to make this Supplemental Indenture No. 1 a valid and binding agreement of the Company and the Trustee, in accordance with its terms;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties 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 Initial Indenture.
(2) Additional Notes. As of the date hereof, the Company shall issue the New Notes pursuant to this Supplemental Indenture No. 1. The New Notes issued pursuant to this Supplemental Indenture No. 1 constitute Additional Notes issued pursuant to Section 2.01 of the Initial Indenture and shall be consolidated with and form a single class with the Existing Notes previously established pursuant to the Initial Indenture. The New Notes shall be treated as a single series with, and shall have the same terms and conditions in all respects as, the Existing Notes, except that the issue date of the New Notes shall be December 17, 2021 and the issue price shall be 99.750% of the aggregate principal amount thereof plus accrued and unpaid interest from December 15, 2021. In addition, the New Notes shall be (and in the case of the New Notes issued pursuant to Regulation S under the Securities Act, after being mandatorily exchanged for New Notes with the same CUSIP/ISIN numbers as the Existing Notes issued pursuant to Regulation S under the Securities Act as described below, shall be) fungible for U.S. federal income tax purposes with the Existing Notes and will have the same issue date and issue price as the Existing Notes for such purposes. The New Notes issued in the form of Global Notes shall be issued under the same CUSIP/ISIN numbers as the Existing Notes (except that New Notes issued pursuant to Regulation S under the Securities Act will trade separately under different CUSIP/ISIN numbers until at least 40 days after the issue date of the New Notes and thereafter, subject to the terms hereof); it being understood that any New Notes issued in the form of a Definitive Note may be exchanged for a beneficial interest in a Global Note in accordance with the provisions of the Initial Indenture. The form of the global notes or definitive notes representing the New Notes is attached hereto as Exhibit A.
(3) Aggregate Principal Amount. The aggregate principal amount of the New Notes that may be authenticated and delivered pursuant to this Supplemental Indenture No. 1 shall be $550,000,000.
(4) Governing Law. THIS SUPPLEMENTAL INDENTURE NO. 1 WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(5) Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture No. 1 shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to and shall not be responsible for the validity or sufficiency of this Supplemental Indenture No. 1 or the New Notes or as to the accuracy of the recitals to this Supplemental Indenture No. 1. The Trustee shall not be accountable for the use or application by the Company of the New Notes or the proceeds thereof.
(6) Counterparts. This Supplemental Indenture No. 1 may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Supplemental Indenture No. 1. Delivery of an executed agreement by one party to the others may be made by facsimile, electronic mail (including any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signatures and Records Act, as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
(7) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(8) Mandatory Exchange of Regulation S Global Notes. Promptly following the termination of 40 days following the issue date of the New Notes, the Company shall cause the beneficial interests in New Notes in the form of Regulation S Global Notes to be exchanged for beneficial interests in a Regulation S Global Note (CUSIP U2947R AB5, ISIN No. USU2947RAB51) pursuant to Applicable Procedures. The Company shall deliver to the Trustee a written order of the Company to process such mandatory exchange, along with an Officer’s Certificate and Opinion of Counsel.
[remainder of page initially left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No. 1 to be duly executed, all as of the date first above written.
| FAIR XXXXX CORPORATION | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
| Title: Treasurer | ||
[Signature Page to Supplemental Indenture No. 1]
U.S. BANK, NATIONAL ASSOCIATION,
as Trustee
| By: | /s/ Xxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxx X. Xxxxxxx | |
| Title: | Vice President |
[Signature Page to Supplemental Indenture No. 1]
Exhibit A
[FORM OF FACE OF NOTE]
[Insert the Restricted Notes Legend, if applicable, pursuant to the provisions of the Initial Indenture]
[Insert the Regulation S Legend, if applicable, pursuant to the provisions of the Initial Indenture]
[Insert the Global Notes Legend, if applicable, pursuant to the provisions of the Initial Indenture]
[Insert the Definitive Notes Legend, if applicable, pursuant to the provisions of the Initial Indenture]
CUSIP [ ]
ISIN [ ]1
[RULE 144A][REGULATION S][IAI][GLOBAL] NOTE
4.00% Senior Notes due 2028
| No. [RA- ] [RS- ] [RIAI- ] [U- ] | [$ ]2 |
FAIR XXXXX CORPORATION
promises to pay to CEDE & CO. or registered assigns the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of $ ( Dollars)]3 on June 15, 2028.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
| 1 | Rule 144A Note CUSIP: 303250 AF1 |
Rule 144A Note ISIN: US303250AF16
Regulation S Note CUSIP: U2947R AB5
Regulation S Note ISIN: USU2947RAB51
IAI Note CUSIP: To be obtained if necessary
IAI Note ISIN: To be obtained if necessary
CUSIP for Unrestricted Global Note: To be obtained if necessary
ISIN for Unrestricted Global Note: To be obtained if necessary
| 2 | Include in Global Notes. |
| 3 | Include in Definitive Notes |
IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.
Dated:
| FAIR XXXXX CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
Dated:
[Reverse Side of Note]
4.00% Senior Notes due 2028
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. FAIR XXXXX CORPORATION, a Delaware corporation (the “Company”), promises to pay interest on the principal amount of this Note at 4.00% per annum until but excluding maturity. The Company shall pay interest semi-annually in arrears on June 15 and December 15 of each year (each, an “Interest Payment Date”). If any such day is not a Business Day, interest shall be payable on the next succeeding Business Day with the same force and effect and no interest shall accrue for the intervening period. Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including December 15, 2021; provided that the first Interest Payment Date shall be June 15, 2022. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes to the extent lawful. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes to the Persons who are registered holders of Notes at the close of business on the June 1 or December 1 (whether or not a Business Day), as the case may be, immediately preceding the related Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Principal, premium, if any, and interest on the Notes shall be payable at the office or agency of the Company maintained for such purpose or, at the option of the Company, payment of interest and premium, if any, may be made by check mailed to the holders at their respective addresses set forth in the Note Register; provided that payment by wire transfer of immediately available funds shall be required with respect to principal, premium, if any, and interest on all Global Notes and all other Notes the holders of which shall have provided wire transfer instructions to the Company or the Paying Agent at least five Business Days prior to the applicable payment date. Such payment shall be in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to the holders. The Company may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture, dated as of December 6, 2019 (as supplemented by that certain Supplemental Indenture No. 1, dated as of December 17, 2021, and as amended or supplemented from time to time, the “Indenture”), among the Company, the Guarantors named therein and the Trustee. This Note is one of a duly authorized issue of notes of the Company designated as its 4.00% Senior Notes due 2028. The Notes are Additional Notes under the Indenture and the Company shall be entitled to issue Additional Notes pursuant to Section 2.01 of the Indenture. The Initial Notes and any Additional Notes issued under the Indenture shall be treated as a single class of securities under the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and holders are referred to the Indenture for a statement of such terms. Any term used in this Note that is defined in the Indenture shall have the meaning assigned to it in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5. REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption, and may be the subject of a Change of Control Offer, as further described in the Indenture. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
A-5
6. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents, and holders shall be required to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered for repurchase in connection with a Change of Control Offer, except for the unredeemed portion of any Note being redeemed or repurchased in part.
7. PERSONS DEEMED OWNERS. The registered holder of a Note may be treated as its owner for all purposes.
8. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be amended or supplemented as provided in the Indenture.
9. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company, the Guarantors, the Trustee and the holders shall be as set forth in the applicable provisions of the Indenture.
10. AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
11. GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Notes, and the Trustee may use CUSIP and ISIN numbers in notices 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 and reliance may be placed only on the other identification numbers placed thereon.
The Company shall furnish to any holder upon written request and without charge a copy of the Indenture. Requests may be made to the Company at the following address:
Fair Xxxxx Corporation
0 Xxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Tel.: 000-000-0000
Email: xxxxxxxxxxxxxx@xxxx.xxx
Attn: Executive Vice President and Chief Financial Officer
A-6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
| Your Signature: |
| |
| (Sign exactly as your name appears on the face of this Note) |
Signature Guarantee*:
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES
| U.S. Bank National Association | ||
| West Side Flats, St. Xxxx 00 Xxxxxxxxxx Xxx | ||
| Xxxxx Xxxx, XX 00000 | ||
| EP-MN-WS3C | ||
| Fax No.: | 000-000-0000 | |
| Email: | xxxxxxxx.xxxxxxx@xxxxxx.xxx | |
| Attention: | Corporate Trust | |
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned (check one box below):
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes. |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) | ☐ | to the Company or subsidiary thereof; or | ||
| (2) | ☐ | to the Registrar for registration in the name of the holder, without transfer; or | ||
| (3) | ☐ | pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”); or | ||
| (4) | ☐ | to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or | ||
| (5) | ☐ | pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter through Euroclear or Clearstream); or | ||
| (6) | ☐ | to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements; or | ||
| (7) | ☐ | pursuant to Rule 144 under the Securities Act; or | ||
| (8) | ☐ | pursuant to another available exemption from registration under the Securities Act. | ||
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof; provided, however, that if box (5), (6), (7) or (8) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company or the Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
|
Your Signature | ||||||||
| Date: |
|
| ||||||
| Signature of Signature Guarantor | ||||||||
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: |
| |
| NOTICE: To be executed by an executive officer | ||
| Name: | ||
| Title: | ||
| Signature Guarantee*: | ||
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE, PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE INDENTURE
The undersigned represents and warrants that either:
| ☐ | the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or |
| ☐ | the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or |
| ☐ | the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes. |
| Dated: | ||
| Your Signature |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 of the Indenture, check the appropriate box below:
[ ] Section 4.10
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.10 of the Indenture, state the amount you elect to have purchased:
| $ | ($2,000 and integral multiples of $1,000, in excess thereof) |
| Date: |
| Your Signature: |
| |
| (Sign exactly as your name | ||
| appears on the face of this | ||
| Note) | ||
| Tax Identification No. |
| |
| Signature Guarantee*: |
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $ . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
| Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount of this Global Note following such decrease or increase |
Signature of authorized signatory of Trustee, Depositary or Custodian |
| * | This schedule should be included only if the Note is issued in global form. |
